The spin machine of the European Patent Office in Munich in full motion. Its Enlarged Board of Appeal declared the referred questions of EPO-President Alison Brimelow inadmissible. A court would stop here but the EBoA is no Court but just an administrative appeals chamber and not bound by judicial standards, so they also discuss the substance. Whatever Rorschach interpretation you may get from the actual 56 pages(!) document, it is not what Rainer Osterwalder made up, contradiction ahead:
Enlarged Board of Appeal confirms EPO approach to computer programs
Munich, 12 May 2010 — Today the Enlarged Board of Appeal of the EPO handed down its opinion on referral G 3/08, taking the opportunity to set out and confirm the approach of the EPO regarding the patentability of computer programs under the European Patent Convention (EPC).
The opinion relates to four questions referred to the Enlarged Board in October 2008 by the President of the EPO concerning points of law of fundamental importance for the Office’s patenting practice in this field.
The Enlarged Board analysed in detail the development of relevant case law, and found that there was a divergence between two decisions of Technical Boards of Appeal. However, recognising that the “case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified”, the Enlarged Board found that this constituted a legitimate development rather than a conflict of case law.
In the absence of conflicting Board of Appeal decisions, the Enlarged Board concluded that the legal requirements for a referral were not met. Nevertheless, the Board affirmed the right of the President of the EPO to “make full use of the discretion granted by Article 112(1)(b) EPC” in making a referral, and provided further guidance on how these requirements for such a referral should be interpreted.
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