Written by 5:09 pm European Union

European Software Patentability: The Lovable Constant – Trademark

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We’re taking you on a journey through the history of
software patents in Europe, through the lens of pop culture. By
zooming out and looking at the big picture of what the EPO has
taught us over the years, we’ll be building up a clear vision
on what you need to do to improve the success of your software
patents at the EPO. At each step along the way through history,
we’re stopping to see a case where the EPO redefined the law in
a way that is still applied today.

In Part I to Part VII of our journey, we’ve seen the EPO set
out the foundational principles of how software patents are dealt
with in Europe and started to see how specific aspects of software
such as GUIs and business methods are handled. Next, we move to
2010, which looked like it was shaping up to be a very important
year in our journey.

Instalment VIII: The lovable constant

It seems unlikely that 2010 will go down in history as a
particularly significant year. There were some devastating natural
and human-induced disasters such as the devastating Haiti
earthquake which saw 250,000 dead, and the BP Deepwater Horizon oil
spill that resulted in 4.9 million barrels of oil being leaked into
the Gulf of Mexico. We shouldn’t forget such terrible incidents
from the recent past. The world was also emerging from the
recession caused by the 2008 crash, and so people needed some hope
and pleasure. In ways, a British Royal Engagement helped, as
William popped the question to Kate that year. As one British
institution continued, another was born with the first season of
Downton Abbey airing. However, there was one person that was an
absolute constant for the youth of 2010, and so well known he is
that he became known by his surname alone: Bieber, Justin Bieber.
Having released his debut album in January 2010, he then sang the
first line of the remake of “We Are the World” to benefit
Haiti following the earthquake and through the year went on to top
virtually every chart he could. In 2010, Bieber was our glimmer of
hope, our unchanging symbol of youth and the future, with his
trademark never-out-of-place floppy hair seen on every magazine and

Over in Europe, software patent attorneys were more excited by
the imminent decision of the Enlarged Board of Appeal –
G3/08, than they were of Bieber’s new album. The Enlarged Board
of Appeal is the highest decision-making body of the EPO which
decides on points of law of fundamental importance. When they have
something to say, the European patent community stops and listens.
G3/08 was a referral from the Board of Appeal to the Enlarged
Board, to ask whether claims directed to computer-readable medium
are patentable. The excitement expected from this decision turned,
like Bieber’s career that then followed, into a bit of a
disappointment. The Enlarged Board stated that there is a clear
body of case law that defines that such claims are allowable and
there was therefore no issue for them to resolve. The excitement
and promise we had hoped for therefore soon died away. However, the
fact that the enlarged Board effectively gave their approval of the
existing case law meant that 2010 was the year many of the basic
principles of software patentability were set in stone for ever. In
contrast, Bieber’s trademark never-out-of-place floppy hair
began a journey of ever-changing styles moving into the realms of
the quiff in 2012, before moving to the top knot in 2015, which
marked the beginning of the end for his career.

If you’re interested, you can read the decision here: Programs for computers G0003/08

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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