February 25, 2009

The European Patent Office (EPO) recently announced that its Enlarged Board of Appeal (EBA) is accepting written statements regarding pending referral G 3/08 pertaining to the patentability of computer programs. Third parties to the appeal have until the deadline of April 30, 2009 to submit written comments and any new cited documents in connection with the following four referred questions:

1. Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?

2.
(a) Can a claim in the area of computer programs avoid exclusion under Art. 52(2)(c) and (3) merely by explicitly mentioning the use of a computer or a computer-readable data storage medium?

(b) If question 2(a) is answered in the negative, is a further technical effect necessary to avoid exclusion, said effect going beyond those effects inherent in the use of a computer or data storage medium to respectively execute or store a computer program?

3.
(a) Must a claimed feature cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim?

(b) If question 3(a) is answered in the positive, is it sufficient that the physical entity be an unspecified computer?

(c) If question 3(a) is answered in the negative, can features contribute to the technical character of the claim if the only effects to which they contribute are independent of any particular hardware that may be used?

4.
(a) Does the activity of programming a computer necessarily involve technical considerations?

(b) If question 4(a) is answered in the positive, do all features resulting from programming thus contribute to the technical character of a claim?

(c) If question 4(a) is answered in the negative, can features resulting from programming contribute to the technical character of a claim only when they contribute to a further technical effect when the program is executed?

According to the EPO announcement (link below), "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."

Copies of the referral (including summary letter, definitions, the questions with additional commentary, and the current state of the law), referral references, the text of Article 10 of the Rules of Procedure of the Enlarged Board of Appeals, The November 11, 2008 decision of the EBA, and the questions as presented in the Official Journal of the EPO (1/2009) are provided within the second link below.

EPO Announcement: LINK
Case G 3/08 (large PDF): LINK
Specific Pending Referral Webpage: LINK
Specific Referral FAQ Webpage: LINK

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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