Still More Amicus Curiae Briefs Submitted to Registrar of...

The question of admissibility of the referral of the questions posed by Ms Brimelow clearly comes into the focus of major stakeholders. FICPI now has joined the camp of those who claim that the referral is simply inadmissible. Mr Julian Crump, Secretary General at International Federation of Intellectual Property Attorneys (FICPI) and Managing Partner, London Office at Mintz Levin Cohn Ferris Glovsky and Popeo Intellectual Property, LLP, recently on Twitter (@JulianRCrump) has put it to the words:

As we say in England: "If it ain't broke, don't fix it."

Quite the same gist appears to be in the contribution of the UK Chartered Institute of Patent Attorneys (CIPA) which has not yet appeared on the EPO website:

"[...] We have certain reservations about the Referral itself. Many of the legal conflicts identified in the Referral are based on an artificial (or incorrect) interpretation of the relevant decisions. They do not substantiate the presence of a divergence between the Boards of Appeal, but represent at most the natural evolution of case law. [...]"

Further on, beyond the question of admissibility of the referral, they argue quite much in the sense of Mr Crump quoted above:

"We therefore urge the Enlarged Board to confirm the current approach of the EPO Boards of Appeal as set out, for example, in T154/04. This approach is now established practice at the EPO and is also reflected in the Guidelines. This will provide welcome consistency, not only with EPO case law, but also across the various jurisdictions within Europe. Previous decisions from the Enlarged Board (e.g. G01/05 and G01/06) have likewise followed established practice absent compelling reasons to hold otherwise."

Other stakeholders in the don't-fix-it camp include:

• Siemens
• SAP

Obviously there is a strong feeling in this camp that present state of the CII patenting business at EPO is, if not at optimum, nevertheless acceptable under the given political and legal constraints. Individuals, bodies and corporations stressing the non-admissibility of the referral are effectively encouraging the Enlarged Board of Appeal not to deal with the subject-matter of the four questions of Ms Brimelow at all, and, hence, leave the present situation substantially untouched. Surely Members of the EBA privately or amongst their peers might have considered from start the non-admissibility option along the lines as sketched by Tufty the Cat. But Prof. Straus has worked hard to put another nail into the non-admissibility coffin for the referral well beyond common procedural EBA wisdom; see also my previous posting.

Of course there are other contributors to the list of Amicus Curiae Briefs strongly desiring a change of current practice of EPO. Some of them might perhaps want to see a broader practice of granting patents on CIIs; however, a lot of activists from the anti-patent camp (or, at least from the anti-software-patent camp) have filed political statements against so-called 'software patents' which do not address the particular situation of the Members of the EBA at all. Whoever wants to foster a change in one or the other direction should have considered to provide some lines of arguing in order to overcome the non-admissibility hurdle first and then, secondly, provide some ideas concerning the four questions to be answered.