Software patents plot buried under amicus avalanche

Brussels, 8 May 2009 — A record number of amicus briefs have been received by European Patent Office (EPO) in their latest attempt to justify granting of software patents.

The EPO’s latest attempt to validate their widely criticized practice of software patenting has been met with a much stronger response than expected. This broad public interest comes in reaction to the referral on the patentability of software to the Enlarged Board of Appeal. The referral procedure allows interested third parties to file statements – Amicus Curiae Briefs – to present their views to the members of the board. The Enlarged Board of Appeals asked for such statements to be submitted by end of April and a total of 89 such statements have been published by the Register so far.

“This is not an average legal procedure. This political case really is about the interpretation tricks of the European Patent Office.” says FFII legal expert Georg Jakob. “It basically boils down to the European Patent Office pondering how to continue patenting software despite the law prohibiting the granting of such patents”. FFII welcomes the publicity the case has found because although the actual practice of software patenting is widely criticised, a lobby of patent attorneys and clients of the EPO, that already have invested in software patenting, still keeps pushing for software patents despite the exclusion of software in Article 52 of the European Patent Convention.

The submitted Amicus Curiae Briefs express a broad range of different legal opinions concerning the EPO practice of patenting software and the application of Art 52 of the European Patent Convention. “These letters are not binding to the board” explains Georg Jakob “but given the juridical complexity of the topic, their number and their content show how problematic software patenting is. The EPO Board would miss a big opportunity if they continue to ignore this discussion.”


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The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

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