The head of the European Patent Office, is referring the question about how to assess the patentability of software-related inventions to her organisation’s highest appeals body.
Alison Brimelow, president of the EPO, has called on the body’s enlarged board of appeal (EBoA), to rule on the issue.
Referrals to the EBoA are rare, happening only with the most complex questions. Another issue being considered by the EBoA is the question of whether human embryos can be patented.
The patentability of software has provoked fierce debate in Europe over the past 10 years. Software is unpatentable in Europe but many software-related inventions have been granted European patents.
In 2005 a proposed EU-wide law attempting to clarify the matter was scrapped because of the depth of divisions between the pro- and anti-patent lobbies.
Brimelow has been considering referring the issue to the EBoA for almost two years, ever since two related patent disputes in the UK highlighted inconsistencies in the application of the European Patent Convention, the rule book used by patent courts in all 34 member countries of the EPO, including all 27 EU member states.
In November 2006 Neal Macrossan, an Australian entrepreneur software developer, lost an appeal against the U.K. Patent Office's rejection of his patent application. He wanted patent protection for a method for producing documents "for use in the formation of a corporate entity using a data processing system."
On the same day the UK Court of Appeal threw out a challenge against a patent owned by IT company Aerotel for a computer program that created a new network infrastructure for a group of computers.