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The EPO referrals: what's really going on?

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

Following the IPKat's initial and follow-up posts -- and the readers' comments -- on the referral to the Enlarged Board of Appeal of the European Patent Office of a number of questions relating to the exclusions from patentability of computer programs, this member of the blog team has been speculating on the deeper meaning of the EPO's current activity and what it could possibly signify.

Right: "Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?" Almost everyone has an answer -- but is it the right one?

Some people say that the referral of the questions is a feeble surrender to the demand of Lord Justice Jacob in Aerotel/Macrossan that the EPO resolve the contradictions in its earlier rulings -- contradictions the existence of which the previous President of the EPO denied -- or whether it is a resolute defence of the EPO's resistance to such pressures that have led it to ask its own questions of the Enlarged Board rather than those articulated by Jacob LJ. The nature of the questions has itself given rise to plenty of speculation. Are they there simply to remove perceived inconsistencies in EPO practice, or are they posed in order to provide an excuse to send out answers that will seek to bind practice in national offices too?

Others are speculating on the line-up of the Enlarged Board. Chaired by the Swiss (and therefore stereotypically neutral) Peter Messerli, the Board's other members consist of the legally qualified Messrs Vogel (Germany), Dorn (Denmark), Harmand (Estonia) and Seitz (France) together with the technically qualified Messrs Rees (UK) and Klein (France). What does this balance of personalities, and indeed nationalities, mean within the geopolitical profile of the EPO?
Debate still persists as to what the Enlarged Board will do. Does the fact that it has now been formally constituted mean that it has to give a ruling, or might it yet be able to decide that the provision of answers to the four questions referred to it is something that lies outside the range of its legal function? And as for the questions themselves, is it conceivable that they would have been posed at all, and particularly in the form in which they are asked, without careful and attentive consultations with senior members of the EPO staff? Is their precise content designed to enable the Enlarged Board, in answering them, to give a good account of itself which shows itself in a good light, or is it designed to invoke regret and repentence for past verbal or conceptual infelicities?

One might reasonably feel that there's a lot more happening than meets the eye. If readers have any further perceptions on the referral, the IPKat hopes they will share them here.

Full post as published by IPKat on November 19, 2008 (boomark / email).