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| 1 |
ID:
094994
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| Publication |
2010.
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| Summary/Abstract |
Under article 53(b) of the European Patent Convention (EPC), European patents cannot be granted for "essentially biological processes" for the production of plants. Unlike the International Convention for the Protection of New Varieties of Plants, the EPC contains no provisions which protect farmers from claims of infringement and, thus, the grant of patents potentially constrain a farmer's normal acttions of planting and harvesting crops using legitimately acquired seed. In practice, interpretation of the exclusion of "essentially biological processes" raises a whole variety of problems, not least the question as to whether involvement by man or machine in a process will take that process out from the relam of the "essentially biological". From the travaux preparatories of the EPC, and from the use of the term "essentially", it is clear that involvement by man or machine is not in itself enough to deny patentability. In this article, we develop the argument that the timing of the involvement rather than its impact alone, is of critical importance. We also comment on two cases which are currently under consideration by the highest instance of the European Patent Office.
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| 2 |
ID:
095580
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| Publication |
2010.
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| Summary/Abstract |
After the introduction we discuss the European Patent Convention (EPC) provisions that are relevant to the exculsion from patentability of computer programs and the broader relevance of the fact that the European Patent Office's (EPO's) Enlarged Board of Appeal has recently been requested by the EPO President to interpret these provisions. Next, we comment on the relevance of the recent EPC revision, before addressing what a computer program must be taken to mean for the purposes of the exclusion from patentability. After drawing attention to the conflict in case law that has developed in relation to the patentability of the computer programs and briefly summarizing the different approaches the EPO has taken to Article 52 of the EPC, we explain the evolution of these approaches, with particular attention to the EPO's dominant "technical character" approach. Subsequently, we address the questions put to the Enlarged Board and how they might be answered. We set out our proposal for what we believe is the approach the Enlarged Board should adopt. Since this approach might have effects beyond the field of computer programs, we show that the EPO case law outside computer programs would not be altered by our approach. Two alternative approaches are then critically addressed before setting out our conclusion.
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