Journal Article

A sun-tanned or 3D smurf? Patentability of computer programs in Europe

Julian Cockbain and Sigrid Sterckx

in Journal of Intellectual Property Law & Practice

Volume 6, issue 4, pages 254-261
Published in print April 2011 | ISSN: 1747-1532
Published online February 2011 | e-ISSN: 1747-1540 | DOI:
A sun-tanned or 3D smurf? Patentability of computer programs in Europe

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  • Arbitration
  • Intellectual Property Law


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Legal Context

The Enlarged Board of Appeal (EBoA) of the European Patent Office in May 2010 handed down its opinion on a referral by the former President of the EPO, Alison Brimelow, on the patentability of computer-related inventions, more particularly computer programs.

Key Points

The EBoA refused to accept the referral and in so doing, in our opinion, overrode the correct interpretation of the “as such” provision of Art. 52(3) EPC, requiring that interpretation to be supplemented by an interpretation which has no basis in the legislative history of the EPC, and even extended that unsupported interpretation in such a way as to further reduce the effects of the exclusions from patentability found in Art. 52(2) EPC.

Practical Significance

As we argue in this article, this leaves the position even more unclear as to the proper basis within law for accepting or rejecting patent claims, not only to computer programs but also to the other subject-matter excluded under Art. 52(2) EPC.

Journal Article.  6257 words. 

Subjects: Arbitration ; Intellectual Property Law

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