The breakthrough made in relation to interpreting whether computer programs and business methodsÂ Âas suchÂ can be patentable by Jacob LJ in the Court of Appeal in Aerotel/Macrossan hasÂ unfortunately been criticised by the EPO in the newly published decision of Duns LicensingÂ Associates LP. It was said that the Aerotel/Macrossan approach is Âirreconcilable with theÂ European Patent Convention … for the reason that it presupposes that Ânovel and inventive purelyÂ excluded matter does not count as a Âtechnical contributionÂÂ.
In Aerotel/Macrossan, Jacob J proposed a 4 stage approach, which had gained approval inÂ Capellini/BloombergÂs application, to interpreting Article 52 of the European Patent ConventionÂ which contains the requirements of patentability and also provides a non-exhaustive list of itemsÂ which are excluded from patentability, including methods of doing business and programs forÂ computers Âas suchÂ.
The EPOÂs Technical Board of Appeal in the Dun decision relates to an application to patent aÂ method of estimating product distribution. The Technical Board gives a thorough examination of howÂ best to approach Article 52 of the European Patent Convention (EPC).
This decision leaves the UK Courts in a predicament. It remains to be seen whether we will followÂ the European Patent OfficeÂs approach or the Aerotel /Macrossan approach. It seems that this areaÂ of law is going round in circles and is in urgent need of clarification.