G3/08

On May 12, 2010, the Enlarged Board of Appeal issued its opinion in case G3/08 (Opinion of the Enlarged Board of Appeal in G3/08).

The ultimate conclusion drawn by the Enlarged Board of Appeal, is that the referral by the President of the European Patent Office does not fullfill the requirements of Article 112(1)(b) EPC, and is therefore not admissable.

In his amicus curiae brief of 26 April 2009, Mr. M. Schulz contested the impartiallity of the Board because one of its members had officially and publicly given his opinion on matters concerning the patentability of computer-implemented inventions. According to the Enlarged Board, it is established case law of the Boards of Appeal, the Enlarged Board and the national courts of the member states, that a board member expressing his view on legal issues in a previous occasion can not lead to the conclusion of doubts as to impartiallity. As, once a judge has been lawfully appointed, he is deemed to act in good faith and is presumed impartial until proven otherwise, the Enlarged Board has decided to leave the composition of the Enlarged Board unchanged.

The latest issue (Janary 2009) of the Official Journal of the EPO, contains a Communication announcing a deadline for submitting third party observations (an amicus curiae brief). The deadline set is the end of April. Submissions should be addressed to the Registry of the Enlarged Board of Appeal.

The complete Communication is attached to this article.

Recent diverging decisions by the Boards of Appeal of the European Patent Office have led the President of the EPO, Mrs. Alison BRIMELOW, to refer a point of law to the Enlarged Board of Appeal.

The referral, dated Wednesday 22 October 2008, invites the Enlarged Board of Appeal to clarify how the exclusion for programs for computers in Article 52(2) and (3) EPC is to be interpreted. More specifically, the questions referred relate to the relevance of the claim category for the applicability of the exclusion, to clarify when a claim as a whole falls under the exclusion, to what extend individual features of the claim contribute to the technical character, and a question concerning the activity (the programming) underlying the resulting (computer) product.