Pandora’s box open on patentability of software inventions following EPO President decision to refer |
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The issue as to whether a software invention can or can’t be patented has been thrown open by the European Patent Office (EPO)’s move to refer the matter to an Enlarged Board of Appeal. In the short term, this move will bring more uncertainty for UK software manufacturers, according to Withers & Rogers LLP. Last Friday, Alison Brimelow, President of the EPO and former head of the UK Intellectual Property Office, announced her decision to raise questions about the meaning of the computer program exclusion that exists as part of European patent law and which currently prevents some software inventions from gaining patent protection. She has referred this question to the EPO’s Enlarged Board of Appeal. Nick Wallin, patent attorney at Withers & Rogers LLP, said: “For the last 20 years or so the exclusion has been interpreted by the EPO as requiring that provided a software invention makes a ‘technical contribution’, for example it makes something work better, faster, more efficiently, then it is patentable.” “The questions referred to the Enlarged Board of Appeal will ultimately bring clarity with regard to the use of such tests. However in the meantime, there is even greater uncertainty for the UK software industry.” According to Withers & Rogers LLP, the EPO’s move to refer the issue will be highly controversial. Nick Wallin explains: “The issue of software patentability is a very political topic and there is a strong and highly organised anti software patent movement in Europe that will be arranging for submissions to be made to the EPO’s Enlarged Board. Whilst many of their views are based on mis-information and mis-understanding of the checks and balances already built into the patent system, they represent a dangerous foe for companies and organisations that rely on software patents to protect their innovations.” The process in the Enlarged Board of Appeal usually takes some time, typically from one to two years until a decision is rendered. Until that time the issue of patentability of computer implemented inventions will be up in the air. Commenting on the likely outcome, Nick Wallin added: “It is anybody’s guess. It is a bit like opening Pandora’s Box - the Enlarged Board of Appeal is not bound by any precedent and can come to whatever decision it likes. It is even possible that software patents could be outlawed in the future. Of course, the UK software industry must hope that instead they decide to clarify the current EPO stance and avoid reinventing the wheel.”
27 October 2008 |
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