Software Patents, Separation of Powers, and Failed Syllogisms: A Cornucopia from the Enlarged Board of Appeal of the European Patent Office

Abstract

The focus of this article is Case G_0003/08 (President’s Reference/Computer programs exclusion), in which the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) rejected as "inadmissible" the EPO President’s referral on the meaning of the computer programs exclusion from patentability contained in Art 52(2)(c) of the European Patent Convention (EPC). The basis for its decision was a restrictive interpretation of the President’s power of referral under Art 112(1)(b) EPC, justified with reference to “current constitutional thinking”, including particularly the EPC’s separation of powers. In this article I suggest that the EBA’s interpretation of Art 112(1)(b) is inconsistent with both the literal terms of that provision and the intent of its drafters. The result is a reading which offends “current constitutional thinking”, including the EPC’s separation of powers and the interpretive principles of Articles 31-33 of the Vienna Convention. I also criticize the EBA’s support for the EPO Boards’ “technical character” theory of Article 52(2)(c) & (3) on doctrinal, theoretical and other grounds, including that it reflects the same faulty logic for which the EBA criticized the President's referral.

Keywords: Vienna Convention Art. 31, Art. 32, Art. 33, travaux, EPC Art. 112(1)(b), Art. 52(2), Presidential referrals, EBA, computer programs, patents, G_03/08, europeanisation, harmonisation, patentability