Abstract
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 on which the EBA relied. The EBA’s support for the EPO’s narrow interpretation of Article 52(2)(c) & (3) is also criticized on doctrinal, theoretical, and other grounds.
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