Background
In addition to the Boards of Appeal before which decisions of the first instances of the EPO can be contested, the EPO includes an Enlarged Board of Appeal. This board does not constitute an additional level of jurisdiction in the classical sense. This instance takes decisions only when the case law of the Boards of Appeal becomes inconsistent or when an important point of law arises. Its purpose is "to ensure uniform application of the law" and to clarify or interpret important points of law in relation to the European Patent Convention. Only the Boards of Appeal themselves and the President of the EPO can refer a question to the Enlarged Board of Appeal. In the first case, the Enlarged Board issues a decision, while in the latter case it issues an opinion. G 3/08 is a referral of the President of the EPO under Article 112(1)(b) EPC.
Under Article 52(2)(c) EPC, the patentability of programs for computers is excluded. However, Article 52(3) EPC provides that this exclusion only applies to the extent to which a European patent application or European patent relates to such programs for computers "as such". The interpretation of the exclusion, including the words "as such", have caused applicants, attorneys, examiners, and judges a great deal of difficulty since the EPC came into force in 1978. An interpretation, which is followed by the Boards of Appeal of the EPO, is that an invention is patentable if it provides a new and non-obvious technical solution to a technical problem.
Referrals to the Enlarged Board of Appeal are said to be rare, happening only with the most complex questions. The patentability of software has provoked fierce debate in Europe over the recent years, especially in relation to the proposed European Union (EU) directive on the patentability of computer-implemented inventions. The directive was rejected in 2005 by the European Parliament, a decision that was welcomed by those on both sides of the debate, by those supporting the patentability of software in Europe as well as those opposing it.
Read more about this topic: G 3/08
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