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The referral has, of course, been widely reported elsewhere, even in the pages of the New York Times.  It is widely assumed, even by some apparently knowledgeable legal types (see here), as well as most commenters here, that the referral will result in some kind of clarification of the law.  One observant IPKat commenter, however, (as well as other more knowledgeable legal types here) has pointed out that there is a good chance the referral will be thrown out by the Enlarged Board instead of being even considered in detail, on the grounds that it doesn't comply with the requirement of Article 112(1)(b).  The last time this happened was in 1995, when the Enlarged Board decided that there was no conflict in the case law on patentability of plant and animal varieties (G 3/95). The provision in question reads:

(1) In order to ensure uniform application of the law, or if a point of law of fundamental importance arises:
[...]
(b) the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.

The last time that questions on the subject of software patents were proposed (by Lord Justice Jacob, after his decision in Aerotel in October 2006), the then President replied that there was "insufficient legal basis for a referral under Article 112(1)(b) EPC. Leaving aside Board of Appeal case law the line of reasoning of which has been abandoned by later case law, I believe there are insufficient differences between current Board of Appeal decisions dealing with Article 52 EPC exclusions on important points of law that would justify a referral at this stage." (reported by the IPKat here).

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