In the January 2009 Official Journal of the European Patent Office (EPO), an official announcement concerning the four pivotal questions being referred by the President under case G3/08 was published. The questions being referred to the Enlarged Board of Appeal are
- Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?
- (a)Can a claim in the area of computer programs avoid exclusion under Article 52(2)(c) and (3) of the European Patent Convention merely by explicitly mentioning the use of a computer or a computerreadable data storage medium?(b)If question 2 (a) is answered in the negative, is a further technical effect necessary to avoid exclusion, said effect going beyond those effects inherent in the use of a computer or data storage medium to respectively execute or store a computer program?
- (a) Must a claimed feature cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim? (b) If question 3 (a) is answered in the positive, is it sufficient that the physical entity be an unspecified computer? (c) If question 3 (a) is answered in the negative, can features contribute to the technical character of the claim if the only effects to which they contribute are independent of any particular hardware that may be used?
- (a) Does the activity of programming a computer necessarily involve technical considerations? (b) If question 4 (a) is answered in the positive, do all features resulting from programming thus contribute to the technical character of a claim? (c) If question 4 (a) is answered in the negative, can features resulting from programming contribute to the technical character of a claim only when they contribute to a further technical effect when the program is executed?
The President wishes to canvass as much third party commentary as possible and states in the final paragraph of the announcement
It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff). To ensure that any such statements can be given due consideration they should be filed together with any new cited documents by the end of April 2009 at the Registry of the Enlarged Board of Appeal, quoting case number G 3/08. An additional filing of the statement and documents in electronic form would be appreciated (Dg3registry_eba@epo.org).
With so much at stake for an entire industry (and for an even larger number of companies that are directly dependent and/or affected by computer-related inventions), there is likely to be a vast number of observations submitted to DG3 regarding this subject matter area.