Computer-related inventions: from CFPH to Macrossan

Abstract

The recent joint decision of the Court of Appeal in Aerotel Ltd v Telco Holdings Ltd and othersand Patent Application by Neal William Macrossan concerns the proper application of the exclusions to patentability under Article 52 of the European Patent Convention (EPC) and in particular the exclusions concerning computer implemented inventions and methods of doing business. Before this decision, the proper approach to this area of the law had been thoroughly discussed and reformulated by Deputy Judge Prescott QC in CFPH followed by a string of first instance cases. There were also numerous decisions of the European Patent Office, not all of which were consistent. Accordingly, this is an area fraught with difficulty where it has been difficult to find an overreaching rationale to exclusions based on individual policy. The Court of Appeal has now set a new four stage test by which computer implemented inventions should be approached, as well as patents to which the other exclusions might apply. This new test may not reduce the difficulty of assessing inventions on a case by case basis, but it provides one source of authority that can now be followed. Furthermore, it may also prove helpful that each of the cases featured in this decision falls on either side of Article 52. As such the decision provides a useful, if sketchy, illustration of the dividing line between patentable and non-patentable subject matter.