22 May 2007: EPO refuse to refer questions


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