European Patent Office
The Registry of the Enlarged Board of Appeal
29. APtit 2009
Amicus Curiae Brief for case G 3/08 before
the EPO Enlarged Board of Appeal
by Ante Wessels
The European Patent Office is an executive organisation, it deals especially with
patent applicants, as such, its view of the world may be biased. As an executive
organisation, its interpretative powers are very limited. The European Patent
Convention excludes computer programs, it is outside the EPO!s power to change
this. The exclusion of computer programs is a political question.
Article 52 was amended to state that inventions in “all fields of technology” are
patentable. This change does not effect the exclusion of computer programs, since
they are not inventions, according to article 52.2.c.
The referral centers around questions regarding technical effects. These questions
are not relevant. Whether a field is a technology field is only important for
inventions. As we saw above, computer programs are not inventions.
The exclusion is “as such”. This implies that a computer program cannot turn an
invention into a non-invention by combining the two.
An example. Traditionally, a seed drill was a mechanical machine. Improved
sowing methods may be a patentable invention. If these improved sowing methods
are indeed an invention, it is not relevant whether these methods are computed on
a computer. They can still be an invention. But there has to be a standalone
patentable invention outside the field of computing.
It only has to be established what are the fields of computing. The core task of a
computer is to process data. So at least the processing of data is not patentable.
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