On October 22, 2008, the President of the EPO referred a point of law on the patentability of computer-implemented inventions to the Enlarged Board of Appeal, i.e. the EPO’s highest instance. web server . The referral is pending under case number G3/08 and concerns “the application of the exclusion of computer programs as such”, which according to the EPO President is “of fundamental importance as it defines the limits of patentability in the field of computing”.

It is remarkable that in April 2009, a private individual raised an objection to the Enlarged Board of Appeal, through an amicus curiae brief, for suspicion of partiality of one of the member composing the Board.
However, on October 16, 2009 the Enlarged Board of Appeal dismissed the objection. how to find my ip address . The Enlarged Board can therefore proceed to draft a full answer to the questions posed in G3/08. The Enlarged Board’s answer will become the ultimate EPO legal reference for assessing patentability of computer-implemented inventions.

The decision of the Enlarged Board on this matter is highly anticipated.
In fact, according to the European Patent Convention (EPC) programs for computer or computer-implemented inventions are not patentable subject-matter (Art. 52(2)EPC), but only to the extent to that they are claimed “as such” (Art. 52(3)EPC).

The exclusion of computer-related inventions from patentability is therefore only a partial exclusion, which is evaluated on a case-by-case basis by the Examiners of the European Patent Office.
Indeed, the “as such” clause has been one of the most debated expressions since the EPC came into force more than 30 years ago. The meaning of the clause is intrinsically unclear and open to all kinds of interpretation.

The proliferation of software and computer-based products in the last two decades has forced the EPO to introduce more detailed guidelines for assisting Examiners, applicants and attorneys in the prosecution of an ever increasing number of computer-related applications.

The current position of the EPO is that an invention is patentable if it provides a new and non-obvious technical solution to a technical problem: in particular, computer programs are patentable as far as they provide a technical contribution over the prior art. According to the case law of the Boards of Appeal of the EPO, a technical contribution should indicate a further technical effect that goes beyond the normal physical interaction between the program and the computer.

However, the decisions of the EPO Boards of Appeal that concern software and computer-implemented inventions show several inconsistencies and are, at times, even mutually contradictory. The decision in the G3/08 case will therefore help clarify the position of the EPO on this matter, thus providing increased legal certainty for all parties involved.

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