proposed law on software patentability that was scrapped in 2005.
She also insisted that she is not going to convene an enlarged board of appeal to draw a clearer line between what software-related inventions are and are not patentable in connection with two related patent disputes in the U.K. that straddled that line, and ended differently.
In November 2006, Neal Macrossan, an Australian software developer, lost an appeal of the U.K. Patent Office rejection of his patent application. He wanted patent protection for a method of producing documents "for use in the formation of a corporate entity using a data processing system." On the same day, the U.K. Court of Appeal threw out a challenge against a patent owned by IT company Aerotel for a computer program that created a new prepay telephone network infrastructure for a group of computers.
The three judges presiding over the cases considered the first a business method and therefore unpatentable, while the second was seen as a patentable hardware change. The leading judge called for a referral to the EPO's appeals body to clarify the law concerning software patentability. While there are no plans for a referral, Brimelow said she wouldn't rule out that possibility in the future.
Unlike her predecessor, Alain Pompidou, Brimelow seems more willing to listen to EPO critics. She admits there are ways to improve the system to better suit the fast-paced IT industry. "Is the 20-year lock-up period always optimal?" she asked, referring to the 20-year life of a typical patent in Europe.
The fourth threat to the status quo of the past 30 years is less philosophical. There are serious logistical and financial problems facing the EPO. There's a year-long backlog of patents -- roughly 200,000 -- waiting for EPO examination.
Brimelow has been open about the financial problem. Last November she told the Financial Times that the EPO's pension and sickness insurance commitments could undermine its business model. "I have got to take active steps -- 2020 is when it's really going to start to bite -- and it constitutes a major challenge," she told the newspaper.
Interviewed in Brussels between meetings at the European Commission and the European Parliament, Brimelow said she welcomes the recent surge in efforts among European Union lawmakers to create a Community Patent. A single patent, valid right across Europe, would replace the patchwork of national patent jurisdictions that currently exist. It would slash the cost of patenting and give patent holders greater legal certainty.
France's ratification of the London Protocol "will make patenting cheaper," she said. The Protocol reduces the number of languages a patent has to be translated into in order to have Europe-wide effect. It is due to take effect in March.
But she is more circumspect than others. Over the past three decades there have been many "false dawns," she said.
Half a year into the job, the new EPO president recognizes the challenges ahead. Her main task will be to change EPO culture enough to allow it to adapt to the changes in store for the patent system. She cited Darwin: "It's not the most intelligent or strongest, it's the most adaptable that survive."
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