European Commission: EPO Case Law Not Binding – Software Not Patentable

Brussels, 24 May 2006. In a reply to a question from Polish MEP and inventor Adam Gierek, the European Commission has confirmed that the European Patent Office’s (EPO) case law is not binding for member states, nor (under the proposed Community Patent regulation) for the European Court of Justice (ECJ). For the first time, the Commission has also clearly stated that computer programs are not patentable subject matter, without hiding behind the infamous “as such” cop-out.

Prompted by a previous Commission statement that “case law which the EPO developed for the European patent will apply to the Community patent”, Professor Gierek’s question pointed out that EPO practice differs from recent software patent case law both in Poland and the UK and that Mr Rocard MEP, rapporteur for the software patents directive in Parliament, stated that its failure was a rejection of the EPO’s extension of patentability to software programs.

The Commission replied that the pre-grant phase of patents could still be still be governed by the European Patent Convention (and thus be handled by the EPO), but that post-grant aspects such as validity and litigation would fall under Community Patent regulation. The ECJ would also be able to form its own opinion, independent of EPO case law. Their conclusion is that in practice, the EPO would therefore have to follow Community Patent case law and not the other way round.

FFII President Pieter Hintjens said: “I’m stunned. The Commission has been denying reality for so long and pretending that the earth was flat and apples did not fall downwards, whereas the EPO has been obnoxiously granting unwarranted pieces of paper whose only innovative effect has been in the domain of patent litigation. Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?”

He further added: “The proposed Community patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is no problem since the ECJ can invalidate the granted patents in infringement cases. That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a license. Therefore software patents not yet taken to court will impose an enormous burden on the industry.”

“It is nevertheless good to see that the Commission no longer presents EPO case law as ‘the status quo which must be codified’. However, it relies too heavily on courts to keep Europe safe from software patents. Whether or not Europe should have software patents is not a legalistic detail which should be left to courts to sort out. It is a crucial economic policy decision which must be taken by our elected representatives.”

Background information

Commission saying computer programs not patentable?

The statement by the Commission that “patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC” is not necessarily a 180 degree turn.

For example, in a recently published decision the EPO’s Technical Board of Appeal (TBA) approved a patent by Microsoft on allowing copy/ paste of arbitrary data as opposed to only a few system-defined kinds. In its justification, the TBA literally stated that as soon as a computer program is executed on a computer, they no longer considered it to be a computer program (but a “computer-implemented method/invention”) and consequently perfectly patentable.

The Commission may be using a similar wordplay. Nevertheless, its confirmation of the fact that the EPO’s case law is not gospel is a step in the right direction. This starkly contrasts to its position during the software patent directive debate, where it always talked about “harmonisation of the status quo” when referring to the codification of European software patents according to EPO practice.

EPO ruled by the ECJ?

On the topic of the ECJ forcing the EPO to adopt a particular practice, FFII analyst Ante Wessels added: “It is not true that the EPO would necessarily apply and be bound by the new unitary Community Patent law. The Community Patent merely creates separate legal systems which allow for different interpretations. There is no hierarchy – the ECJ is not above the EPO and cannot tell it what to do. The EPO can sell Community titles, Community software patents, and then the ECJ can say: ‘Sorry the Community title you just bought is worthless’. The Commission advocates a cheap trick. And we can only hope the ECJ will indeed invalidate software patents.”


Contact Information

Jonas Maebe
FFII Board Member
jmaebe at

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at

About the FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

Comments are closed.