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Patent Law

: I/P Updates

U.K. Computer Program Patent Eligilbilty

By William F. Heinze

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As noted by the IP Kat blog, "The Court of Appeal judgment in Symbian Ltd v Comptroller General of Patents has just been published, and is available from BAILII here. The UK-IPO's appeal against the decision of Mr Justice Patten in the High Court (here, with IPKat commentary here and here) has been dismissed."

According to the decision by Lord Neuberger,

"This is the judgment of the court to which all members have contributed. It is on an appeal brought, with the permission of the Judge, by the Comptroller General of Patents against a decision of Mr Justice Patten. He allowed an appeal by Symbian Ltd against the Comptroller's decision refusing UK Patent Application No GB 0325145.1 ("the Application"), on the ground that the alleged invention was excluded from patentability by section 1(2) of the Patents Act 1977. The issue raised on this appeal requires us to consider the reach of the exclusion of "programs for computers" from patentable inventions, a topic which is inherently difficult and on which there is apparently inconsistent authority domestically and in the European Patent Office ("EPO"). . . ."

". . . It is, of course, inevitable that there will be cases where the EPO will grant patents in this field when UKIPO should not, at least so long as the view in Pension Benefit and Hitachi is applied by the Board and is not applied here. The fact that the two offices and their supervisory courts have their own responsibilities means that discrepancies, even in approach or principle, are occasionally inevitable. However, the fact that such discrepancies have been characterised as "absurd" by Nicholls LJ, and the reasoning in [3] of Conor emphasise the strong desirability of the approaches and principles in the two offices marching together as far as possible. This means that there is a need for a two-way dialogue between national tribunals and the EPO, coupled with a degree of mutual compromise. More directly relevant to the present appeal, it means that, where there may be a difference of approach or of principle, one must try to minimise the consequent differences in terms of the outcome in particular patent cases."

"For these reasons, we would dismiss this appeal."