Recente divergerende beslissingen

President EPO vraagt Grote Kamer van Beroep om duidelijkheid t.a.v. de octrooieerbaarheid van computerprogramma’s:

“Recent diverging decisions by the EPO's boards of appeal have created uncertainty regarding the patentability of programs for computers under the European Patent Convention (EPC). EPO President Alison Brimelow has therefore referred a number of questions on this subject to the Enlarged Board of Appeal (EBoA), since it is the EBoA's task to ensure uniform application of the EPC. The answers to the questions are necessary to enable the further harmonious development of case law in this field.

The referral does not call into question the applicable provisions of the EPC: Article 52(2) and (3) states that programs for computers as such are not to be regarded as inventions, in other words they are excluded from patentability. However, guidance is sought on how some of the finer aspects of this exclusion are to be applied.

The questions seek clarification not only on when a claim as a whole falls under the exclusion, but also on the circumstances under which individual features relating to programs for computers can contribute to the technical character of a claim (in which case they are relevant for assessing novelty and inventive step).

It is hoped that the answers to these questions will lead to greater clarity concerning the limits of patentability, thereby facilitating application of the EPC by patent examiners and enabling both applicants and the wider public to understand the law regarding the patentability of programs for computers.

Specifically, the questions address four different aspects of patentability in this field. The first question relates to the relevance of the category of the claim. The other three questions ask where the line should be drawn between those aspects excluded from patentability and those contributing to the technical character of the claimed subject-matter: the second question concerns the claim as a whole; the third, individual features of the claim; and the fourth - relevant for defining the skills of the (technically) skilled person - concerns the activity (the programming) underlying the resulting product (the computer program)."

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