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(Reactions to the May 2010 decision: * [http://www.computerworlduk.com/toolbox/open-source/open-source-business/news/index.cfm?newsId=20266 European Patent Office silent on software patent questio)
 
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"'''G3/08'''" is a referral (a consultation) held by the [[EPO]]'s Enlarged Board of Appeal concerning the [[EPC]]'s definition of patentable subject matter in Article 52. ([http://documents.epo.org/projects/babylon/eponet.nsf/0/B89D95BB305AAA8DC12574EC002C7CF6/$File/G3-08_en.pdf G3/08 - the referral])
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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 consultation is now closedYou can see the submitted briefs here: '''[[Briefs submitted to EPO EBA G3-08]]'''.
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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: [http://documents.epo.org/projects/babylon/eponet.nsf/0/DC6171F182D8B65AC125772100426656/$File/G3_08_en.pdf G3_08_en.pdf].
  
==Terminology==
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A public [[consultation]] was held in early 2009 as part of the consultation process(see [[Briefs submitted to EPO EBoA G3-08]])
When replying, it's important to think about the meanings of the following termsThey probably have specific meanings given to them by the EPO or by the legislative debate of 2003-2005, so you can't assume they mean what you think they mean.
 
  
* technical effect
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==Questions of partiality==
* further technical effect
 
* a technical effect on a physical entity in the real world
 
* technical character
 
* technical considerations
 
* physical entity
 
* unspecified computer
 
  
To think about these, keep in mind that we aim to exclude [[Mp3 audio]] patents and patents about displaying information on a computer screen.  We thus have to define terms like "''a technical effect on a physical entity in the real world''" in a way that doesn't allow the attachment of speakers or a computer screen to fulfil the criteria.
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One amicus brief questioned the partiality of the board,<ref>http://documents.epo.org/projects/babylon/eponet.nsf/0/24132F14CDCF83F9C12575AD002AF47D/$File/G3-08_amicus_curiae_brief_Schulz_de.pdf</ref> but the EPO disagreed and decided not to change the composition of the board.<ref>http://documents.epo.org/projects/babylon/eponet.nsf/0/A29F9A464FCDEB05C12576620035166B/$File/G00003_08_interlocutory_en.pdf</ref>
  
The referral says that the following four terms are synonyms: computer program, program, program for computer, and software.  If defines these as "''a series of steps (instructions) which will be carried out by the computer when the program is executed''".
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==The May 2010 decision==
  
==The questions==
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* PDF Pages 1-23: reasons for the referal, written Oct 23rd 2008
===Question 1===
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* PDF Pages 24-28: the questions of the referal, Nov 11th 2008
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* PDF Pages 29-39: partiality review declares self impartial, Oct 16th 2009
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* PDF Pages 40-99: this is the opinion, first published May 12th 2009
  
:''1. Can a computer program only be excluded as a computer program as such if it is explicity<nowiki>[sic]</nowiki> claimed as a computer program?''
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The entire conclusion on page 55 (PDF page 99) is:
  
Suggested answer: No.  A computer program, or more precisely an innovation in a computer program, cannot be patented.  The type of claim does not affect this.
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<blockquote>
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''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.''
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</blockquote>
  
===Question 2a===
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On the role of the legislator, pages 16-17 (PDF pages 60-61):
  
:''2.(a) Can a claim in the area of computer programs avoid exclusion under Art. 52(2)(c) and (3) merely by explicity<nowiki>[sic]</nowiki> mentioning the use of a computer or a computer-readable data storage medium?''
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<blockquote>
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''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.''
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</blockquote>
  
Suggested answer: No.
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On the current unclear situation, page 6 (PDF page 50):
  
Philips' answer is again interesting, again mentioning that patentability is based on whether the innovative and non-obvious aspects of the application are "technical".  Whether use of a computer is mentioned or not is not relevent.
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<blockquote>
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''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.''
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</blockquote>
  
===Question 2b===
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==Related pages on {{SITENAME}}==
  
:''(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?''
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* [[EPO G3-08 brainstorming]] - where [[ESP]] posted suggested responses
  
Note: a further technical effect is always necessary, so the important part of this question is the second half, starting with "said effect...".  The criteria mentioned in the second half is too narrow.  This would allow patents which claim to increase software efficiency or reduce storage requirements.
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==External links==
 
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===epo.org links===
===Question 3a===
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* [http://www.epo.org/topics/news/2008/20081024.html The October 2008 announcement]
 
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* [http://www.epo.org/topics/issues/computer-implemented-inventions/referral.html The October 2008 announcement (alternative link)]
:''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?''
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* [http://documents.epo.org/projects/babylon/eponet.nsf/0/B89D95BB305AAA8DC12574EC002C7CF6/$File/G3-08_en.pdf G3/08], the referral itself
 
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* The [http://www.epo.org/patents/appeals/eba-decisions/referrals/pending.html pending queue of referrals], where this one was found
That requirement is insufficient. Patents should not be granted on [[mp3 audio]] or on ways of displaying information on a computer screen. If use of speakers or a computer screen could constitute an effect on a "physical entity in the real world", then this would be allowing software patents.
 
 
 
===Question 3b===
 
 
 
:''(b) If question 3(a) is answered in the positive, is it sufficient that the physical entity be an unspecified computer?''
 
 
 
It's probably impossible to give 3(a) a positive or negative answer, so we have to start the answer to this question with a clarification that we think 3(a) doesn't go far enough.
 
 
 
===Question 3c===
 
 
 
:''(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?''
 
 
 
No,
 
 
 
Features should only be able to contribute to the technical character of a claim if they contribute to effects that involve controllable uses of applied natural science. Known ways of using hardware should not be counted - i.e. making a speaker produce sound or making a screen display information or images.
 
 
 
===Question 4a===
 
 
 
:''4.(a) Does the activity of programming a computer necessarily involve technical considerations?''
 
 
 
No. Writing software can be complex, just as writing a novel or composing music, but none of these acts are "technical" in the sense of patent law.
 
 
 
If any of these acts are considered "technical" in the sense of patent law, this is a mistake in the patent law and should be corrected.
 
 
 
===Question 4b===
 
 
 
:''(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?''
 
 
 
No such features contribute to there being a technical character in a claim.
 
 
 
===Question 4c===
 
  
:''(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?''
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After receiving the responses to the consultation, the EPO published information to repeat its claim that it doesn't grant software patents:
  
No features resulting from programming can contribute to there being a technical character in a claim.
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* [http://www.epo.org/topics/issues/computer-implemented-inventions.html epo.org topic: Patentability of computer programs]
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* [http://www.epo.org/topics/issues/computer-implemented-inventions/software.html epo.org brochure "Patents for software?"]
  
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===Third-party articles===
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* [http://www.ipjur.com/blog2/index.php?/archives/131-Enlarged-Board-Of-Appeal-at-EPO-Can-Impartiality-of-Member-Be-Challenged-By-Amicus-Curiae-Brief.html Enlarged Board Of Appeal at EPO: Can Impartiality of Member Be Challenged By Amicus Curiae Brief?]
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* [http://www.ffii.org/EPOReferral An FFII page on the referral]
  
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===Reactions to the May 2010 decision===
  
==External links==
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* [http://news.swpat.org/2010/05/epo-patents-review-inadmissible/ EPO rules own software patents review inadmissible], [[ESP]]
* [http://documents.epo.org/projects/babylon/eponet.nsf/0/B89D95BB305AAA8DC12574EC002C7CF6/$File/G3-08_en.pdf G3/08], the referral itself
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* [http://www.ipjur.com/blog2/index.php?/archives/150-EPO-EBoA-Opinion-in-re-G-0308-Patentability-Of-Computer-Implemented-Inventions.html EPO EBoA Opinion in re G 03/08 (Patentability Of Computer-Implemented Inventions)], IP::JUR
* The [http://www.epo.org/patents/appeals/eba-decisions/referrals/pending.html pending queue of referrals], where this one was found
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* [http://www.epo.org/topics/news/2010/20100512.html EBoA confirms EPO approach to computer programs], EPO
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* [http://ipkitten.blogspot.com/2010/05/g-308-software-patents-decision-is-out.html G 3/08 (Software Patents) decision is out - Tufty the Cat vindicated], IP Kat
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* [http://www.patentlyo.com/patent/2010/05/patenting-computer-implemented-inventions-ciis-in-the-epo.html Patenting Computer-Implemented-Inventions (CIIs) in the EPO], Patenly-o
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* [http://eupat.ffii.org/10/05/eba/ EPO Supreme Tribunal refuses to arbitrate on Software Patents], [[FFII]]
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** Press release: [http://press.ffii.org/Press%20releases/Brimelow%20Referral%20on%20software%20patents%20dismissed%3A%20%22time%20for%20the%20legislator%20to%20take%20over%22 Brimelow Referral on software patents dismissed: "time for the legislator to take over"]
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* [http://www.pcworld.com/article/196138/appeals_body_ducks_question_of_software_patentability.html Appeals Body Ducks Question of Software Patentability], IDG News (PC World)
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* [http://www.computing.co.uk/computing/analysis/2263024/europe-gets-serious-ip Europe clarifies its position on intellectual property], computing.co.uk
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* [http://prawfsblawg.blogs.com/prawfsblawg/2010/05/software-patents-in-europe-g-308.html Software Patents in Europe-- G 3/08], PrawfsBlawg
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* [http://www.visaepatentes.com/2010/05/epo-enlarged-board-of-appeal-found.html EPO Enlarged Board of Appeal found Referral on Computer-Implemented Inventions inadmissible (G 3/08)], Visae Patentes
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* [http://www.computerworlduk.com/toolbox/open-source/open-source-business/news/index.cfm?newsId=20266 European Patent Office silent on software patent question], Computer World UK
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* {{translate fr|url=http://europeanpatentcaselaw.blogspot.com/2010/05/g308-la-saisine-est-irrecevable.html|title=G3/08: the referral is inadmissible}}
  
 
==References==
 
==References==
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{{page footer}}
 
[[Category:European Union]]
 
[[Category:European Union]]
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[[Category:Consultations]]

Latest revision as of 12:51, 6 June 2010

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

epo.org 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

References