Symbian appeal dismissed
IPKat - IP news and fun for everyone: The much anticipated Court of Appeal judgment in Symbian Ltd v Comptroller General of Patents has now arrived*, and is available from BAILII here. The judgment relates to an appeal by the UK-IPO against the decision of Mr Justice Patten in the High Court (also available from BAILII here, and with IPKat commentary here and here), in which the UKIPO’s approach relating to patentability of computer programs was overturned, after the Comptroller had refused Symbian’s application under Section 1(2) for being excluded on the grounds of being a program for a computer as such. The UKIPO clearly thought this needed to be further tested, as they thought they were correctly following the approach laid down by the last Court of Appeal judgment in Aerotel.
Having now had chance to read the judgment in full, the IPKat is impressed by the way Lord Neuberger, opining on behalf of all three appeal judges (including Jacob LJ), has smoothed over the apparent inconsistencies and difficulties between the UK and EPO approaches to this tricky and controversial area of patent law. Putting aside (but by no means ignoring) the clear provocations between the UK courts and EPO boards of appeal in Aerotel and Duns Licensing, Lord Neuberger seems to have managed to convince at least himself that there is little actual difference between the patentability test in the UK (as characterised by the four step test in Aerotel) and at the EPO (the rather different test for technical character/contribution). Both, according to Lord Neuberger, should arrive at the same result for the great majority of inventions. It did no good to emphasise the differences, and instead we should be looking for what there is in common:”[I]t is particularly important to scrutinise the domestic and EPO authorities to see whether…