The president of the European Patent Office has turned down a request by three English judges to have the EPO clarify a tricky section of European and UK patent law.
In October last year the judges took the very unusual step of asking for clarification of the scope of Article 52. They made the request in their judgement in the case of Neal Macrossan's appeal to have the UK patent Office grant a patent for his invention.
Article 52, clause 2, outlines items that do not qualify for patent protection, under European and UK law, and includes "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers".
Exactly how this clause should be interpreted has been extremely contentious, with passionate arguments on both sides of the debate. Some fear that too broad an interpretation could lead to US-style software idea patents being granted in the UK. Others are concerned that if it is interpreted too narrowly, it will discourage innovation in the UK.
The Judges wrote at the time that decisions by the EPO's board of appeal have been mutually contradictory in their interpretation of Article 52:
"Surely the time has come for matters to be clarified by an Enlarged Board of Appeal...the President of the EPO has the power to refer a point of law to an Enlarged Board where two Boards of Appeal have given different decisions on that question. That is now clearly the position."
In his reply, the EPO president Professor Alain Pompidou explains that he sees things differently. Although he concedes that there have been different interpretations, these have not been sufficiently different on important points of law to justify referring the questions to an enlarged board of appeal, he says.
"I believe the appropriate moment for a referral would be where the approach taken by one Board of Appeal would lead to the grant of a patent whereas the approach taken by another Board would not," he wrote. ®