European Patent Office refuse to refer questions surrounding patentability of Computer Software to the Enlarged Board. The confusion surrounding what computer software is patentable and what is not looks set to continue.
The President of the European Patent Office (EPO), Alain Pompidou, has
declined a request by the UK Court of Appeal to clarify how patent
applications for computer software should be treated under the European
Patent Convention (EPC). Computer software “as such” is excluded from
patent protection under Article 52(2)(c) and 52(3) of the EPC, and the
corresponding Section 1(2)(c) of the UK Patents Act. Although the
interpretation of the exclusions should be the same, it often seems
that the UK Patent Office and courts take a stricter approach to the
European Patent Office.
In the Aerotel and Macrossan judgement of the Court of Appeal, Jacob J
informally requested that the Enlarged Board of the EPO issue a
decision that once and for all set out the nature of the exclusions.
Such a decision would codify more than two decades of European case
law, and would, though not binding on national courts, offer clear
guidance for judges to follow. As motivation, Jacob J cited
inconsistencies in the decisions of the EPO to date, and a need for a
Europe-wide consensus on how excluded subject matter should be dealt
with. However, in an open letter to the UK Patent Office, Alain
Pompidou has refused the request stating that the case law of the EPO
is at present sufficiently clear. As a result, the disparity between
the decisions of the UK Patent Office and EPO looks set to continue.
Click here for letter
Click here for Aerotel PDF
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