FAQs on the opinion of the Enlarged Board of Appeal
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Questions
- What effect will this opinion have on the examination practice of the EPO?
- What now?
- Is this opinion binding on member states?
Answers
What effect will this opinion have on the examination practice of the EPO?
The opinion of the EBoA states that the position on the patentability of computer programs taken by recent case law is consistent and is to be applied. The EPO practice, outlined in OJ EPO 2007/11, 594, is in line with this case law and so there will not be a change in practice. If a claim related to a computer program defines or uses technical means it is not excluded from patentability as a computer program 'as such'. However, only those aspects of a claim which contribute to its technical character are taken into consideration for assessing novelty and inventive step.
This opinion settles the issue at the EPO, although of course case law will continue to develop as it has always done. The opinion stated that the EBoA does not constitute a further instance ranking above the boards of appeal, and can only intervene (with the exception of petitions for review under Article 112a EPC which concern procedural matters and have a very narrow scope) if the exhaustive admissibility criteria set out in Article 112 EPC are fulfilled. The EBoA noted that a referral does not become admissible merely because it could advance the cause of legal uniformity in Europe, or because consistent board rulings are called into question by a vocal lobby, adding: "When judiciary-driven legal development meets its limits, it is time for the legislator to take over".
Is this opinion binding on member states?
National patent offices and courts are not bound by the interpretation of the EPC given by the EBoA. Similarly, the EPO boards of appeal are not bound by decisions of national patent offices and courts. However, various references from national judgements indicate that they regard the EBoA as an important authority for guidance on how the EPC is to be interpreted.