Ms Brimelow did it!

In late 2005, in the UK Supreme Court of Judicature Court of Appeal (Civil Division) a decision had been handed down (Aerotel/Macrossan, Neutral Citation Number: [2006] EWCA Civ 1371) wherein a proposal had been made to refer a number of points of law concerning the patentability of computer-implemented inventions (CII) to the Enlarged Board of Appeal of the EPO:

"[...] But surely the time has come for matters to be clarified by an Enlarged Board of Appeal. Under Art.112(1)(b) of the EPC 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. There are indeed at least four differing points of view. We have no power to refer any question and must reach our decision now independently of what any Enlarged Board might decide if and when there is a reference. Nonetheless we have ventured to formulate questions which might be asked of an Enlarged Board in the hope of encouraging a reference. We add that the Comptroller supports us in this course. [...]"

However, Mr Pompidou, the then President of the European Patent Office and predecessor of Ms Brimelow, did not follow. It might have been expected that Ms Brimelow is ready to take that step but it comes a bit as a surprise that this happens just now. The reasoning about her motivation appears to be wide open to speculations.

Surely, one point of relevance in the context of her motivation is the fading patent enthusiasm on the political stage. In 2000, on the Diplomatic Conference for the revision of the European Patent Convention, an attempt to formally remove the computer program exclusion from Article 52 EPC failed. This was a time when TRIPS was the unquestioned gold standard of intellectual property politics, and an important aspect in those days was to facilitate grant of patents for the so-called customers of the patent offices around the world. The same common attitude served as a life vest for the patent system in 2005 when a majority of parliamentarians of the European Parliament pulled the brake and threw out the Draft Directive on patentability for computer-implemented inventions just before grassroots anti-patent movements were able to wreck the entire patent system.

But now we live in a time where it is mainstream in some circles to demand a cut-back of the patent system, and even a Nobel laureate is with them. And, last not least, Ms Brimelow herself has sent strong signals that even in her view it would be desirable to cool down the patent system by confessing "I am coming to the conclusion that the backlog will not be mastered." Others talk about the "global warming" of the patent system that ought to be tackled with appropriate countermeasures, and a few days ago Dugie Standeford and Kaitlin Mara reported on IP Watch that TRIPS may evolve to keep pace with modern IP concerns.

With other words: Whatever the Enlarged Board of Appeal will do with the recent referral, its core question is considered of not having that degree of criticality as it had been in 2000 or 2005. Some may think that it might be desirable to let the Enlarged Board of Appeal do the work of clarifying the borderlines of patentability by either narrowing or widening the realm of patents in order to get a manageable test for patentability - if they should be prepared to pick up that issue at all: If the Enlarged Board of Appeal should accept Ms Brimelow's referral as admissible (they could also hold that the referral is inadmissible, arguing that there are no real contradictions in case law justifying the present referral!) then they will be faced with potential fate of a scapegoat. Whatever the Board will decide, the members of political bodies like parliamentarians, members of Governments or of the EPO Administrative Council are then free to shrug the shoulders and point to the EBA as soon as complaints are raised.

As I indicated above, at a first glance it looks strange that Ms Brimelow refers a set of questions to a body dedicated to the interpretation of law when she herself admittedly is convinced that the law does not give any hint for answering the questions. But the solution for this puzzle might be that we have something like an attempt to mis-use the EBA as a political body by trying to redirect a political question to juridical body.