EPO vs. software

10 June 2010

The Enlarged Board of Appeal of the EPO, with decision G 3/08 of 12.05.2010, has considered  inadmissible the four questions referred to in October 2008 by the President of the EPO concerning the patentability of software in the European Patent Convention.
In particular, it is stated that recent decisions (T 1173/97, IBM (OJ EPO 1999, 609) and T 424/03, Microsoft del 24.02.2006) represent different positions in terms of patentability of software, but it is also affirmed that this is to be considered as a natural development in this matter, also considering that, in new legal and/or technical fields, the case law does not always develop in linear fashion, and that earlier approaches may be abandoned or modified.

As a consequence, such decisions are not in conflict about the issue of exclusion from patentability of software stated by art. 52(2) EPC, rather they consitute a legitimate development in the patent law and, thus, the referred questions are inadmissible. In practice, no decision has been taken, confirming, in this way, the approach adopted by the EPO in the issues of patentability of computer programs by now.

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