Intellectual Property Law

"[I]t is particularly important to scrutinise the domestic and EPO authorities to see whether a clear and consistent view, or at least a predominant view, as to the scope of the computer program exclusion can be discerned. The last thing that we should do in this case is to add to the uncertainty in this difficult and somewhat controversial field" (paragraph 32).

"The fact that there are now three such decisions of the Board subsequent to Aerotel which appear to support the approach disapproved in Aerotel might suggest that this court should now adopt that approach. We do not agree. First, there is no decision of the Enlarged Board. Not only does that mean that the view of the Board is not as authoritative as it could be; it also suggests that the Board does not consider that the time has arrived for the point to be conclusively determined. Secondly, the approaches in the four decisions since Aerotel are not identical: in particular, one of them appears more consistent with the view preferred in Aerotel. Thirdly, we are concerned that, particularly if the passage quoted from File search method/Fujitsu represents the Board's view, the computer program exclusion may have lost all meaning. Fourthly, it is not as if the English courts are alone in their concern about the approach of the Board, as the observations from the German judiciary quoted in para 30, and referred to in paras [129] to [131] of Aerotel, demonstrate. Fifthly, if this court is seen to depart too readily from its previous, carefully considered, approach, it would risk throwing the law into disarray" (paragraph 46).

As a final point, and as two commenters to the previous brief version of this post have already pointed out, this judgment is notable for the fact that it makes a direct reference to a blog, something this Kat has not seen before in a UK legal judgment. The reference is not to the IPKat, unfortunately, but instead the US Patently-O blog, and to a rather dubious prediction of the US definition of patentability changing away from patenting software to the detriment of companies like Google. The IPKat, who is aware that he has already caused one previous recent Court of Appeal judgment to be altered at the last minute, looks forward to the day when his words are cited by an eminent Lord or two. Merpel, however, is glad that the UK legal system maintains its apparent ignorance of fictional cats in its deliberations, because otherwise the Kats in question might get ideas above their station.