[ffii] Brimelow Referral on software patents dismissed: «time for the legislator to take over»

arebenti at ffii.org arebenti at ffii.org
Sun May 16 16:26:18 CEST 2010

[ Europe / Patent / Innovation]
Brimelow Referral dismissed: «time for the legislator to take over»

Munich, 13  May 2010 -- The highest appeal chamber of the European Patent
Office, the Enlarged Board of Appeal (EBoA), has decided on patents for
computer programs.  The questions on point of law from President Brimelow
were decided to be "inadmissible" under Article 112(1)(b) EPC. It chided
the President for bothering the board with her questions. For such
requests Alison Brimelow was recommended to ask her legal staff.

The EBoA also looked into the substance but felt not competent to define a
key term as "technical". The board prefers a legislator to decide
patentability of computer programs: "
a presidential referral is not
admissible merely because the European Parliament and Council have failed
to adopt a directive on CII patenting  
When judiciary-driven legal
development meets its limits, it is time for the legislator to take over".

FFII welcomes the spirit of the decision. "The European Parliament should
now ask for a new directive for harmonization. Five years ago the European
Commission and leading members of the European Parliament suggested that",
explains FFII president Benjamin Henrion.

"The referral was overshadowed by institutional politics",  adds André
Rebentisch, the FFII general secretary. "The Board had to reject it for
formality reasons, as recommended by Prof. Joseph Straus. Still I found
the initiative of Alison Brimelow very fruitful. She restarted a technical
debate over patenting rules for computer programs. The amount, diversity
and quality  of the third party statements, together with the length of
the final decision are telling. We ought to continue a broad and open
exchange of views."


Opinion of the Enlarged Board of Appeal and press release by the EPO:

FFII Page about the Referral on the question of software patents (G03/08):

Third party statements on G03/08 (Amicus Curiae Briefs):

Hartmut Pilch comments for the EUPAT WG:

Permanent link to this press release:


Benjamin Henrion
FFII Brussels
+32-484-56 61 09 (mobile)
bhenrion at ffii.org

About FFII

The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards. More
than 1000 members, 3,500 companies and 100,000 supporters have entrusted
the FFII to act as their voice in public policy questions concerning
exclusion rights (intellectual property) in data processing.

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