There has long been a belief in the independence in the English Courts. Probably those elsewhere in Europe characterise this as bloody mindedness, as yet another decision diverges from the European norm. Colin Birss QC, who appeared on behalf of the Treasury in the Astron Clinica case I have just posted about, shed a rather different light on the matter in a recent talk (18 Feb 2008) at the Queen Mary Intellectual Property Research Institute (QMIPRI), drawing on the saga of patentability of computer software.
English Courts try to follow what they understand the law as interpreted by the European Patent Office to be; they then state this law in a relevant decision. However, the European Patent Office then changes its view of the law, but the English Courts are bound by their earlier decision.
This explains the bumpy ride software patents have had in the UK, and that there is (in theory at least) still a difference between the UK courts and the European Patent Office on what is patentable, as reflected in the English decision of Aerotel v Macrossan. What can be learnt from this analysis is that one cannot be certain what is patentable; even if it is (or is not) now, that may change. Which is good for lawyers but not necessarily good for innovation and those who have to invest in patents. Of course patents are not alone in creating uncertainty – there are plenty of other happenings in, for example, the internet arena which make innovation in this area exciting from a legal perspective.
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