The European Patent Office (EPO) has today turned down a request from the Court of Appeal in Aerotel/Macrossan to clarify the European position on software patentability.
The Court of Appeal’s request was pending, following a key decision in the UK last year principally involving Neal Macrossan and his patent application for a document assembly system. Whilst the Court of Appeal judges ruled against the inventor in October 2006, they took the unprecedented step of seeking clarification on how exclusions should be applied to software and business method patents. Their request, to the European Patent Office, involved a number of key points which they felt would have a Europe-wide impact on the treatment of software patents.
The EPO has today refused to refer these questions to the Enlarged Board of Appeal, claiming insufficient disparity in software judgments in the EPO.
Dr. John Collins, Partner at Marks & Clerk (who represented Macrossan in his application to the House of Lords for appeal), comments:
‘The questions that the Court of Appeal wanted referred to the Enlarged Board of Appeal represented a sensible desire to seek pan-European consistency in the consideration of software patentability, where more high level endeavours have in the past failed. Although the Court of Appeal ruled against Macrossan, their desire to see these questions answered was an admission that there is a major disparity in the treatment of software patentability in Europe. It is greatly disappointing that the President deems there to be insufficient disparity, particularly when pressure came from within the legal system, rather than from the software industry. This is a blow for Europe in trying to achieve a more universal treatment of software, and it is an even greater blow for the UK, in light of the anti-software stance which is particularly associated with its judgments in this area.’