We’re taking you on a journey through the history of software patents in Europe, through the lens of pop culture. By zooming out and looking at the big picture of what the EPO has taught us over the years, we’ll be building up a clear vision on what you need to do to improve the success of your software patents at the EPO. At each step along the way through history, we’re stopping to see a case where the EPO redefined the law in a way that is still applied today.

In Part I to Part VII of our journey, we’ve seen the EPO set out the foundational principles of how software patents are dealt with in Europe and started to see how specific aspects of software such as GUIs and business methods are handled. Next, we move to 2010, which looked like it was shaping up to be a very important year in our journey.

Instalment VIII: The lovable constant

It seems unlikely that 2010 will go down in history as a particularly significant year. There were some devastating natural and human-induced disasters such as the devastating Haiti earthquake which saw 250,000 dead, and the BP Deepwater Horizon oil spill that resulted in 4.9 million barrels of oil being leaked into the Gulf of Mexico. We shouldn’t forget such terrible incidents from the recent past. The world was also emerging from the recession caused by the 2008 crash, and so people needed some hope and pleasure. In ways, a British Royal Engagement helped, as William popped the question to Kate that year. As one British institution continued, another was born with the first season of Downton Abbey airing. However, there was one person that was an absolute constant for the youth of 2010, and so well known he is that he became known by his surname alone: Bieber, Justin Bieber. Having released his debut album in January 2010, he then sang the first line of the remake of “We Are the World” to benefit Haiti following the earthquake and through the year went on to top virtually every chart he could. In 2010, Bieber was our glimmer of hope, our unchanging symbol of youth and the future, with his trademark never-out-of-place floppy hair seen on every magazine and billboard.

Over in Europe, software patent attorneys were more excited by the imminent decision of the Enlarged Board of Appeal – G3/08, than they were of Bieber’s new album. The Enlarged Board of Appeal is the highest decision-making body of the EPO which decides on points of law of fundamental importance. When they have something to say, the European patent community stops and listens. G3/08 was a referral from the Board of Appeal to the Enlarged Board, to ask whether claims directed to computer-readable medium are patentable. The excitement expected from this decision turned, like Bieber’s career that then followed, into a bit of a disappointment. The Enlarged Board stated that there is a clear body of case law that defines that such claims are allowable and there was therefore no issue for them to resolve. The excitement and promise we had hoped for therefore soon died away. However, the fact that the enlarged Board effectively gave their approval of the existing case law meant that 2010 was the year many of the basic principles of software patentability were set in stone for ever. In contrast, Bieber’s trademark never-out-of-place floppy hair began a journey of ever-changing styles moving into the realms of the quiff in 2012, before moving to the top knot in 2015, which marked the beginning of the end for his career.