Ingwer Koch, head of Directorate Patent Law at the EPO, has presented some interesting slides at the last EGA conference on Legal Affairs. He started his speech by mentioning that the EPO was granting patents on Biotechnological Inventions and Computer Implemented Inventions for "economic" reasons, not for "philosophical" reasons. He did not clarify what were EPO's economic reasons, but we all know that the EPO does not invest its capital in economic studies, but rather in expanding the patent system.
Furthermore, he mentioned the current definition of what is a person skilled in the art adopted by the EPO infamous Technical Board of Appeal, which is formulated as follows:
The notional person skilled in the art
- should be an ordinary practitioner aware of what was common general knowledge in the art at the relevant date;
- may be a team consisting of persons having different areas of expertise, e.g. a research or production team;
- is normally not assumed to be aware of patent of technical literature in a far removed area;
- would adopt a conservative attitude;
- would never go against an established prejudice;
- would never try to enter into "sacrosanct" or unpredictable areas;
- would never take incalculable risks.
You can conclude that any software programmer and/or user is not a person skilled in the art, since using or developing software is now, with the EPO practice to grant software patents, a too risky and unpredictable area where risks are incalculable.