The EU Parliament (and the Directive) can change national law in the member states. However, it cannot make a legally binding change on the EPO (although it would certainly be influential).

In contrast, the EBA decision can change at least the EPO interpretation of the law, but cannot make any legally binding change on national law (although again it would certainly be influential).

So in a strict legal sense it is incorrect to see the EU Parliament and the EBA as alternatives because they are legislating (or having legal effect) over different domains.

However, it is true that they might still be seen as alternative routes for implementing policy, given that there would probably be a significant overlap in practical outcome.

Strictly speaking, this is not possible. The patent law is defined in the European Patent Convention (EPC), which is a completely separate treaty from the EU (and so not subject to the EU Parliament).

The EPC can be (and has been) amended by the national governments of the member states (which include some states that are not EU members, such as Turkey).

The EPO cannot “set” the law, but it does have to interpret and then apply the law. The outcome of this decision is that there will be no change in how the EPO interprets and applies the law.

In Europe, no one really knows who’s supposed to be in charge of patent law. If the EBoA said, confidently “It’s us, we’re staffed by competent judges from European countries, we conclude that software should be patentable” – then other institutions (like the European Parliament) would be likely to accept that. On the contrary, the EBoA said:

“…a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting … When judiciary-driven legal development meets its limits, it is time for the legislator to take over.”

That’s what we want. We want the law to be set by the European Parliament, not by the EPO.

I wrote more on this here.