Alison Brimelow, President of the European Patent Office (EPO), has entered the fray on the vexed subject of the patentability of software and has referred various questions to the Enlarged Board of Appeal.

Should computer programs be eligible for patentability at all? If so, how do you fulfil the requirement for the subject matter of your patent to be more than a computer program as such? Is it a simple matter of form (the "any hardware" approach) or substance (the elusive concepts of "technical effect" and "technical character" and where such effects should be felt - inside or outside the computer for example?).

If the exclusions in Art 52 EPC can be avoided by simply drafting the claim to include reference to hardware then the exclusion is rendered pointless. Supporters of this approach may argue that such applications will then fall to be considered on their merits in terms of novelty and inventive step but prior art can be difficult to identify in this field. A likely side-effect of a form not substance approach will be a slew of granted patents which can be used in a bully-boy fashion in negotiation - will a potential infringer pay the license fee or enter into litigation and attempt to invalidate the patent?

The deadline for written, third party observations ends on 30 April after which it is "wait and see". To file a response or contribute you need to file your statement and any new documents with the Registry of the Enlarged Board of Appeal quoting case no. G3/08. You can provide additional e-filing to dg3registry_eba@epo.org.