Do you spot what Philip Martin from Marks&Clerk got wrong:
In its decision, the Enlarged Board confirmed the acceptability of the President of the EPO to “make full use of the discretion” given to her by the European Patent Convention, but found that there was insufficient divergence to make her referral admissible. As such, no substantive decision was given, …
Philip Martin, Partner at Marks & Clerk LLP, comments: “The decision by the Enlarged Board of Appeal is a very significant move, particularly for software makers who have struggled with the historic divergence and stricter treatment… By confirming the EPO’s existing approach, the Enlarged Board of Appeal has given industry far greater certainty as to the state of the law at the EPO, which will hopefully bring considerably more clarity and consistency to the patentability of computer implemented inventions across Europe and its various national patent offices. It has taken the EPO some time to reach its current practice, and it is to be welcomed that this practice has now been confirmed”.
Sorry dude, but the point of these firms is partly to communicate how the obscure technical ramblings of lawyers will translate into commercial practice for their clients.
The EBoA opinion confirms the EPO approach de facto, if not de jure. Or to put it another way, the EBoA opinion confirms the EPO approach by the most meaningful, reality-based criteria.
A dismissal of the referral G03/08 does not confirm anything. The EBoA did not confirm the institutional approach but dismissed the Presidential referral for breaches of formality. Apparently the referral was a trap for their President A. Brimelow.