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The Future Of The European Requirement For An Invention: Inherent Patentability As A Pre- And Post-Patent Determinant, Justine Pila Jan 2011

The Future Of The European Requirement For An Invention: Inherent Patentability As A Pre- And Post-Patent Determinant, Justine Pila

Justine Pila

The purpose of this chapter is to develop the reflections contained in the conclusion of a recent book (The Requirement for an Invention in Patent Law (Oxford: OUP, 2010)). Specifically, it is to propose a method for applying the requirement for an invention under Article 52(1) of the EPC, including a definition of the invention itself. I argue that while the proposal does not solve all definitional and methodological issues regarding that requirement, it is nonetheless justified on four central grounds. First, it reorients the European patent system around its central aim of supporting industrial growth. Second, it explains ...


Software Patents, Separation Of Powers, And Failed Syllogisms: A Cornucopia From The Enlarged Board Of Appeal Of The European Patent Office, Justine Pila Dec 2010

Software Patents, Separation Of Powers, And Failed Syllogisms: A Cornucopia From The Enlarged Board Of Appeal Of The European Patent Office, Justine Pila

Justine Pila

The decision of the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) in G_0003/08 regarding the patentability of computer programs under the European Patent Convention (EPC) is considered, and the grounds for the EBA’s rejection of the President’s referral on the computer programs exclusion of Article 52(2)(c) & (3) analysed. An argument is made that the basis for that rejection is an interpretation of the President’s power of referral under Article 112(1)(b) EPC that is inconsistent with Articles 31–33 of the Vienna Convention, and that offends the constitutional principles ...