The UK Court of Appeal has today handed down its keenly-awaited judgment in Symbian Ltd v Comptroller General of Patents. This concerns the ambit of the exclusion from patentability for computer programs "as such" and the apparent differences between the way this exclusion is addressed by the European Patent Office (EPO) and the UK Intellectual Property Office / the UK courts.
In this judgment the appeal court also considered whether it was free to and, if so, should depart from its own previous decisions on this issue. It would be free to do so if the relevant Board of Appeal of the European Patent Office had formed a settled view on this issue which differed from that arrived at in the previous UK cases. The UK court did exactly that in Actavis UK Ltd v Merck & Co Inc in respect of another patent law issue, as we have previously reported.
The Court of Appeal determined that the EPO case law was not yet sufficiently clear and consistent for the UK appeal court to be justified in departing from the UK precedents. Therefore, the approach in Merrill Lynch, Gale, and Fujitsu Limited's Application (1997), as clarified in Aerotel Limited v Telco Limitedand Macrossan's Application (2007) was again followed.
For a reminder of the background, read Wragge & Co's expert analysis of the Aerotel judgment and those that followed it.
The end result: Symbian's application remains excluded, although the UK Court of Appeal has made another plea for "a two-way dialogue between national tribunals and the EPO, coupled with a degree of mutual compromise...". The Symbian judgment is available here.