Computer Program Patents: EPO Consultation and New Case

March 4, 2009

SCL members will be well aware of the continuing, nay remorseless, debate about the patentability of computer programs. Now the debate has widened into a quasi-official consultation. And you will soon have an opportunity to feed through your views via SCL.

The Enlarged Board of Appeal announced on 19 February that third parties wishing to file written statements concerning pending referral G 3/08 can do so until the end of April. G 3/08 is the case which seeks to clarify questions on the patentability of computer programs. It was referred to the Enlarged Board of Appeal by EPO President Alison Brimelow last year.

‘It is expected that third parties will wish to use the opportunity to file written statements’ the announcement in the January edition of the Official Journal reads. ‘To ensure that any such statements can be given due consideration they should be filed together with any new cited documents by the end of April.’

The referral does not call into question EPC Article 52(2) and (3), which states that programs for computers as such are not to be regarded as inventions and are therefore excluded from patentability. Instead, it seeks guidance on how the details of this exclusion are to be applied.

SCL has taken to the opportunity to offer views by asking Mark Daniels of Browne Jacobson LLP to lead its response. Mark is going to use the capacity of the revamped SCL Web site to allow members to interact. He will write for a special blog focused on the computer patents issue, gain members’ views through that and then draft a response.

The latest Patent Court decision by Mr Justice Lewison can be found here In Re AT&T Knowledge Ventures LP [2009] EWHC 343 (Pat), the appeals were rejected on the basis of Aerotel and Symbian.