G 3/08

G 3/08

Enlarged Board of Appeal of the European Patent Office

ECLI:EP:BA:2009:G000308.20091016
Issued May 12, 2010

Board composition

Members: Martin Vogel (DE) (rapporteur), Dai Rees (GB) (additional rapporteur), Michael Dorn (DK), André Klein (FR), Uwe Scharen (DE), Jean-Pierre Seitz (FR) ^[1]

Headwords

Programs for computers

Under case number G 3/08, the Enlarged Board of Appeal of the EPO issued on May 12, 2010 an opinion in response to questions referred to it by the President of the European Patent Office (EPO), Alison Brimelow, on October 22, 2008. The questions subject of the referral related to the patentability of programs for computers under the European Patent Convention (EPC) and were, according to the President of the EPO, of fundamental importance as they related to the definition of "the limits of patentability in the field of computing."^[2] In a 55-page long opinion, the Enlarged Board of Appeal considered the referral to be inadmissible because no divergent decisions had been identified in the referral.^[3]

The referral had been quoted as relating to the "deeply contentious question about how to assess the patentability of software-related inventions".^[4] Alison Brimelow had been reported to have been considering referring the issue to the Enlarged Board of Appeal for almost two years.^[4]

Some amicus curiae briefs had anticipated that the referral would be considered inadmissible under the legal provisions of the EPC, and in particular Article 112(1)(b) EPC.^[5]

^ Peter Messerli, Case number: G 3/08, Order, European Patent Office (EPO), Enlarged Board of Appeal, Munich, November 6, 2008 (page 23 of pdf document). Corrected by the later order: "Change of composition of the Board (compare to order of 6.11.08): Due to an administrative error Ms. K. Härmand was designated to sit in the present case, instead of Mr. U. Scharen, who should have been designated according to the business distribution scheme of the Enlarged Board of Appeal. This is hereby corrected." in Peter Messerli, Case number: G 3/08, Order (same link as above), EPO, Enlarged Board of Appeal, Munich, ??(30??).02.2009 (page 28 of pdf document). Consulted on May 1, 2009.
^ Referral from the President of the EPO, October 22, 2008, cover letter.
^ G 3/08, Headnote 7.
^ ^a ^b Paul Meller, EU software patent issue goes to appeals body, New York Times, October 24, 2008
^ See for instance Joseph Straus, Re: Case No. G3/08, Referral of the President of the European Patent Office under Article 112 (1) (b) EPC of October 22, 2008, Statement According to Article 11 b Rules of Procedure of the Enlarged Board of Appeal, Munich, April 27, 2009, and in particular, point 8.1: "Only under very strict conditions, namely, when there is a contradictory case law by “two boards” and not a progressive development of the law by a “one board,” as it seem to be at hand in the present referral may the President refer questions to the Enlarged Board of Appeal."

[1] Peter Messerli, Case number: G 3/08, Order, European Patent Office (EPO), Enlarged Board of Appeal, Munich, November 6, 2008 (page 23 of pdf document). Corrected by the later order: "Change of composition of the Board (compare to order of 6.11.08): Due to an administrative error Ms. K. Härmand was designated to sit in the present case, instead of Mr. U. Scharen, who should have been designated according to the business distribution scheme of the Enlarged Board of Appeal. This is hereby corrected." in Peter Messerli, Case number: G 3/08, Order (same link as above), EPO, Enlarged Board of Appeal, Munich, ??(30??).02.2009 (page 28 of pdf document). Consulted on May 1, 2009.

[cover-2] Referral from the President of the EPO, October 22, 2008, cover letter.

[3] G 3/08, Headnote 7.

[meller-4] Paul Meller, EU software patent issue goes to appeals body, New York Times, October 24, 2008

[5] See for instance Joseph Straus, Re: Case No. G3/08, Referral of the President of the European Patent Office under Article 112 (1) (b) EPC of October 22, 2008, Statement According to Article 11 b Rules of Procedure of the Enlarged Board of Appeal, Munich, April 27, 2009, and in particular, point 8.1: "Only under very strict conditions, namely, when there is a contradictory case law by “two boards” and not a progressive development of the law by a “one board,” as it seem to be at hand in the present referral may the President refer questions to the Enlarged Board of Appeal."

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