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Wednesday, 28 January 2009

G 3/08: Have your say

This month's Official Journal of the EPO contains an announcement relating to the EPO President's referral under Article 112(1)(b) EPC on software patents. As well as reproducing the questions first announced back in October 2008 (commented on by the IPKat here, here and here) and the composition of the board, the announcement says the following:

"It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff). To ensure that any such statements can be given due consideration they should be filed together with any new cited documents by the end of April 2009 at the Registry of the Enlarged Board of Appeal, quoting case number G 3/08. An additional filing of the statement and documents in electronic form would be appreciated ("
It's not clear to the IPKat whether comments received only by email will be accepted, but he thinks it's probably worth a shot.  The IPKat expects that this one will probably involve quite a lot of statements, and he hopes that DG3 is prepared for the deluge.  

Update (29 Jan): Given the comments below, to be sure to have your comments included, make sure you first send them to the following address:

Registry of the Enlarged Board (G 3/08)
80298 Munich


Anonymous said...

Dear David, I do not think that statements filed only by email will be formaly accepted, as the notice says that "an additionall filing ... would be appreciated", not that it replaces the "written statements".

David said...

You're probably right. I think it's worth a try though, if only to save on postage and paper.

Anonymous said...

I agree fully if the statement is not even worth a stamp :-))

Anonymous said...

We see again the problem of fine points in the three official languages that in places give a different meaning of even the EPC. The last paragraph in the three languages read:

Eine zusätzliche Einreichung der Stellungnahme und Dokumente in elektronischer Form wäre dienlich

Literally, this means that the statement, while using the traditional way, should use an electronic form in parallel.

"zusätzlich" = additional

(wäre dienlich = be useful - but literally "would serve us well")

An additional filing of the statement and documents in electronic form would be

this is quite unambiguous in this respect: "additional" says it all.

L'envoi électronique des observations et documents serait également apprécié (

Now, here we have an interesting statement: "également" means equally, which would indicate that the EBA do not care which means of communication is used. If I had written it to mean what the two other languages say, I would have added "en parallèle" or "supplementaire", but then my French is clumsy.

The sister blog "Le blog du droit européen", not surprisingly, only mentions the electronic means.

David, you need to file in French to save paper!

Kind regards,


Anonymous said...

Perhaps DG3 are hoping that the anti-software-patent lobby will take this announcement to mean that they can file submissions only by email so that they can then be consigned to be the bin as not being in compliance with the Rules of Procedure in that they do not comprise a written statement.

Anonymous said...

Although the announcement in the Official Journal mentions only Article 10 of the Rules of Procedure of the Enlarged Board of Appeal, Rule 114 EPC, which states in its first paragraph that "the observations by a third party shall be filed in writing in an official language of the EPO", appears to apply as well (see also Rule 3 (3) EPC referred to in paragraph 2 of Rule 114 EPC). Think about the party to the proceedings receiving thousand of observations in all possible languages!
Filing of and the formal requirements for documents in general is governed by Rule 2 (1) EPC. As regards filing by "technical means of communication" the decisions of the President of the EPO, Special edition No 3 OJ EPO 2007, A.4., A.5 appear relevant. It follows from these requirements that a document only sent by e-mail does not, at present, appear to fulfil the conditions of "filing a written statement" in the meaning of the EPC.

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