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The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention (EPC) is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973. The subject also includes the question of whether European patents granted by the European Patent Office (EPO) in these fields are regarded as valid by national courts.
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The European Patent Convention (EPC), the multilateral treaty instituting the legal system according to which European patents are granted, contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). For instance, a decision of an Examining Division refusing to grant a European patent application may be appealed by the applicant. The appeal procedure before the European Patent Office is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO.
The opposition procedure before the European Patent Office (EPO) is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed. European patents granted by the EPO under the European Patent Convention (EPC) may be opposed by any person from the public. This happens often when some prior art was not found during the grant procedure, but was only known by third parties.
In certain jurisdictions' patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this context, the concept of "industry" is far-reaching: it includes agriculture, for instance. An example of invention which would not be susceptible of industrial application is "a method of contraception [...] to be applied in the private and personal sphere of a human being".
In patent law, a disclaimer are words identifying, in a claim, subject-matter that is not claimed or another writing disclaiming rights ostensibly protected by the patent. By extension, a disclaimer may also mean the amendment consisting in introducing a negative limitation in an existing claim, i.e. "an amendment to a claim resulting in the incorporation therein of a 'negative' technical feature, typically excluding from a general feature specific embodiments or areas". The allowability of disclaimers is subject to particular conditions, which may vary widely from one jurisdiction to another.
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Aerotel v Telco and Macrossan's Application is a judgment by the Court of Appeal of England and Wales. The judgment was passed down on 27 October 2006 and relates to two different appeals from decisions of the High Court. The first case involved GB 2171877 granted to Aerotel Ltd and their infringement action against Telco Holdings Ltd and others. The second case concerned GB application 2388937 filed by Neal Macrossan but refused by the UK Patent Office.
Sir Nicholas Richard Pumfrey styled The Rt Hon. Lord Justice Pumfrey, was a British barrister. He served as a High Court judge for 10 years, and was promoted to the Court of Appeal little more than a month before his sudden death.
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Article 83 of the European Patent Convention (EPC) relates to the disclosure of the invention under the European Patent Convention. This legal provision prescribes that a European patent application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
Under the European Patent Convention (EPC), European patents shall be granted for inventions which inter alia involve an inventive step. The central legal provision explaining what this means, i.e. the central legal provision relating to the inventive step under the EPC, is Article 56 EPC. That is, an invention, having regard to the state of the art, must not be obvious to a person skilled in the art. The Boards of Appeal of the European Patent Office (EPO) have developed an approach, called the "problem-and-solution approach", to assess whether an invention involves an inventive step.
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Under the European Patent Convention (EPC), European patents shall be granted for inventions which inter alia are new. The central legal provision explaining what this means, i.e. the central legal provision relating to the novelty under the EPC, is Article 54 EPC. Namely, "an invention can be patented only if it is new. An invention is considered to be new if it does not form part of the state of the art. The purpose of Article 54(1) EPC is to prevent the state of the art being patented again."
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Art. 23 1/15, Art. 23 2/15 and Art. 23 1/16 are three related cases decided by the Enlarged Board of Appeal of the European Patent Office concerning the removal from office of Patrick Corcoran, a member of the Boards of Appeal, who had been previously suspended by the Administrative Council of the European Patent Organisation. According to Article 23(1) EPC, members of the Boards of Appeal may only be removed from office by the Administrative Council on a proposal from the Enlarged Board of Appeal. Two cases were successively initiated by the Administrative Council, but the Enlarged Board eventually dismissed both of them. In the third case initiated by the Administrative Council, the Enlarged Board decided not to propose the removal from office of Corcoran.
R 19/12 is a decision issued on April 25, 2014 by the Enlarged Board of Appeal of the European Patent Office (EPO), in which the Enlarged Board allowed an objection of suspicion of partiality against its Chairman, the Vice-President of Directorate General 3 (DG3), and ordered that he be replaced, because he was also acting as member of the Management Committee of the EPO. In 2014, the effects of the decision were said to be potentially far-reaching.
References
- ↑ "Case law of the EPO boards of appeal, 9th edition, July 2019". European Patent Office. Retrieved 11 September 2019.
The revised and expanded ninth edition is published in September 2019.
- ↑ See for instance:
- "... the "Case Law of the Boards of Appeal of the EPO" – sometimes referred to as the "White Book" – a comprehensive and systematic survey in the three official languages of the EPO of all the case law of the boards of appeal since the very beginning." in EPO Official Journal, Special edition 2/2007, 13th European Patent Judges’ Symposium, Thessaloniki, 12 to 16 September 2006, page 24
- "A word should be said here about I.D.4.5 in the ‘White Book’, ..." in David Rogers, "Patents: Inventive step (alternative formulation of problem) and ‘old’ closest prior art: whether to admit an auxiliary request filed at the end of the oral proceedings", Journal of Intellectual Property Law & Practice (2007) 2(4): 210-211 doi : 10.1093/jiplp/jpm021
- EPO Board of Appeal decision T 0968/05 of November 9, 2006, Reasons 4.1
- ↑ Frédéric Bostedt (8–9 November 2012). EPO boards of appeal and key decisions, Keeping up-to-date on the case law of the boards of appeal: the EPO's publications, website, and decisions database (Part 1 of 3). Munich, Germany: European Patent Office. 1:42 to 4:30 minutes in. Retrieved July 7, 2013.
- ↑ Frédéric Bostedt (23–24 March 2011). "Case law of the EPO boards of appeal: a review by internal and external experts (Munich, Germany), Sources of information on developments in EPO case law: the website, the White Book and other legal texts (summary)". European Patent Academy seminar. European Patent Office. Archived from the original on 4 March 2016. Retrieved 11 August 2012.
- ↑ Sir Robin Jacob (23–24 March 2011). Case law of the EPO boards of appeal: a review by internal and external experts, The perception of the role and function of the EPO's BoA by the national judges, Part 2: Specific aspects of EPO practice. Munich, Germany: European Patent Office. 4:45 to 5:40 minutes in. Retrieved August 3, 2012.[ permanent dead link ]