CA Patent approach criticised in Duns Licensing Associates LP

The breakthrough made in relation to interpreting whether computer programs and business methods ‘as such’ can be patentable by Jacob LJ in the Court of Appeal in Aerotel/Macrossan has unfortunately been criticised by the EPO in the newly published decision of Duns Licensing Associates LP. It was said that the Aerotel/Macrossan approach is “irreconcilable with the European Patent Convention … for the reason that it presupposes that “novel and inventive purely excluded matter does not count as a ‘technical contribution’”.

In Aerotel/Macrossan, Jacob J proposed a 4 stage approach, which had gained approval in Capellini/Bloomberg’s application, to interpreting Article 52 of the European Patent Convention which contains the requirements of patentability and also provides a non-exhaustive list of items which are excluded from patentability, including methods of doing business and programs for computers “as such”.

The EPO’s Technical Board of Appeal in the Dun decision relates to an application to patent a method of estimating product distribution. The Technical Board gives a thorough examination of how 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 follow the European Patent Office’s approach or the Aerotel /Macrossan approach. It seems that this area of law is going round in circles and is in urgent need of clarification.

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