[ Europe / Patent / Innovation]

===================================================================== Brimelow Referral dismissed: "...time for the legislator to take over" =====================================================================

Munich, 13 May 2010 -- The highest appeal chamber of the European Patent Office, the Enlarged Board of Appeal (EBoA), has decided on patents for computer programs (G03/08). The questions on point of law from President Brimelow were decided to be "inadmissable" under Article 112(1)(b) EPC. The EBoA childed the President to get bothered with her questions. For future requests Alison Brimelow was recommended to better ask her legal staff.

The EBoA also discussed the substance of software patent granting rules. The EBoA felt not competent to define a key term as "technical". The decision highlights the need of a legislator to clarify the legal foundation of software patent granting: “…a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting … When judiciary-driven legal development meets its limits, it is time for the legislator to take over”.

FFII welcomes the spirit of the decision. "The European Parliament should now request a new directive for harmonization. Five years ago the European Commission and leading members of the European Parliament suggested that", explains FFII president Benjamin Henrion.

"The referral was overshadowed by institutional politics. The Vice-President of the European Patent Office is at the same time the President of the Enlarged Board of Appeal.", adds André Rebentisch. The FFII general secretary continues: "the EBoA had to reject the referral for formality reasons, as recommended by Prof. Joseph Straus. Still I found the initiative of President Brimelow very helpful. She restarted a technical discourse over patenting rules for computer programs. The amount, diversity and quality of the third party statements, together with the length of the final decision are telling. We have to continue a broad and open exchange of views."

=================================================================== Links ===================================================================

Opinion of the Enlarged Board of Appeal and press release by the EPO: http://www.epo.org/topics/news/2010/20100512.html

FFII Page about the Referral on the question of software patents (G03/08): http://www.ffii.org/EPOReferral

Third party statements on G03/08 (Amicus Curiae Briefs): http://www.epo.org/patents/appeals/eba-decisions/pending/briefs.html

Permanent link to this press release: http://press.ffii.org/Brimelow_Referral_dismissed

=================================================================== Contact ===================================================================

Benjamin Henrion FFII Brussels +32-484-56 61 09 (mobile) bhenrion at ffii.org (French/English)

=================================================================== About FFII ===================================================================

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.