[News] EPO judge: any "practical and repeatable solution" is patentable

PILCH Hartmut phm at a2e.de
Thu Apr 26 14:52:30 CEST 2001



you can find my recension of a recent article by a member of the
Technical Boards of Appeal (TBA) of the EPO, i.e. those groups of
experts who changed the jurisdiction so as to allow software, business
methods, games, data structures, mathematical methods and in fact
anything man-made under the sun to be patented in Europe, and to
render the exclusion list on Art 52(2) of the EPC completely obsolete
and irrelevant.  In fact the EPO's "Basic Proposal for the Revision of
the European Patent Convention" of July 2000 proposed to delete this
whole exclusion list, but the politicians then were afraid to take
that step, very much to the agony of all those in the EPO who believe,
as I do, that a systematic approach to patentability is needed.

The EPO has been much criticized by law experts for not providing this
systematic approach, see


and especially the references to Thomas Winischhofer's dissertation.

Well, now Mark Schar, who was a judge on the TBA until recently, does
offer a well-crafted systematic approach.  The article says that he
wrote it down after careful consultation with some colleagues who are
still sitting on the TBA.  There can hardly be any doubt that it
expresses a wide-felt consensus of this institution.  Some
representatives of the EPO actually insisted during consultations in
Brussels that the whole exception list must be removed and replaced by
a "dynamic concept of technical character", because otherwise a
systematic legal doctrine can not be construed on the basis of current
EPO practise, and because anything else might lead to doubts as to the
possibility of pursuing those who publish patent-infringing computer
programs.  I completely agree.

Now what is this systematic legal doctrine that can serve to explain
the current EPO practise in a systematic manner?

Is there any factual difference to comparable doctrines of the United
States Patent Office?

See for yourself.


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