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EPO EBoA referral G3-08

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Referral G3/08 is a set of questions about software patents, sent to the European Patent Office's highest administrative entity, the Enlarged Board of Appeals (EBoA), by the EPO's president. It is also called the Brimelow referral, after the then-president Alison Brimelow. The questions concerned the EPO's interpretation of Article 52 of the European Patent Convention.

The EBoA responded in May 2010 that there was nothing in the questions that they were able to answer. The questions posed were all "inadmissible". The response is 99 pages: G3_08_en.pdf.

A public consultation was held in early 2009 as part of the consultation process. (see Briefs submitted to EPO EBoA G3-08)

Questions of partiality

One amicus brief questioned the partiality of the board,[1] but the EPO disagreed and decided not to change the composition of the board.[2]

The May 2010 decision

  • PDF Pages 1-23: reasons for the referal, written Oct 23rd 2008
  • PDF Pages 24-28: the questions of the referal, Nov 11th 2008
  • PDF Pages 29-39: partiality review declares self impartial, Oct 16th 2009
  • PDF Pages 40-99: this is the opinion, first published May 12th 2009

The entire conclusion on page 55 (PDF page 99) is:

The referral of 22 October 2008 of points of law to the Enlarged Board of Appeal by the President of the EPO is inadmissible under Article 112(1)(b) EPC.

On the role of the legislator, pages 16-17 (PDF pages 60-61):

harmonisation [...] can be taken up by the Enlarged Board only to the extent possible under the EPC, even if his suggestion might significantly advance the cause of legal uniformity in Europe. When judiciary-driven legal development meets its limits, it is time for the legislator to take over.

On the current unclear situation, page 6 (PDF page 50):

A uniform understanding of where to draw the dividing line between applications relating to programs for computers as such, which are excluded from patentability under Articles 52(2)(c) and (3) EPC, and applications relating to patentable technical solutions, in the form of CIIs, still cannot be assumed despite considerable convergence in recent court rulings.

Related pages on ESP Wiki

External links links

After receiving the responses to the consultation, the EPO published information to repeat its claim that it doesn't grant software patents:

Third-party articles

Reactions to the May 2010 decision