Peter Prescott Rules On The Margins Of Uncertainty

has received this from Edward Tomlinson, of Frohwitter. It's a determination of Peter Prescott QC, sitting as a Patents Court Deputy Judge inward CFPH LLC v Comptroller-General of Patents, Designs together with Trade Marks [2005] EWHC 1589 (Pat), 21 July 2005, a instance that addresses the topical number of patents for reckoner programs.

CFPH applied for 2 patents for networked interactive betting, the inventions consisting of software that enabled a customer to have the most up-to-date data earlier placing his bet. The applications were refused past times the Patent Office, the examiner considering that all they did was to supply an improved transactional process. This beingness so, the inventions were no to a greater extent than than a describe concern method together with were thus excluded from patentability nether s.1(2) of the Patents Act 1977 (= Article 52 of the European Patent Convention). Since those inventions provided no technical contribution (which could homecoming an otherwise excluded project design patentable), they were excluded subject-matter "as such" together with could non last patented.

CFPH appealed, contention that the Patent Office ought to employ the reasoning that was used past times the European Patent Office, which filtered out excluded subject-matter at the phase of considering inventive step, piece the U.K. Patent Office did together with so when considering novelty. Peter Prescott QC dismissed the appeal since it was clear that neither of the 2 alleged inventions was patentable. In whatever event, he ruled, it didn't affair which approach was used, since each of them would atomic number 82 to the same result.

In giving his ruling, Peter Prescott QC spoke eloquently of the gulf betwixt the existent basis inward which patents dominate markets together with the legal basis -- inward which words are king. He said (at paragraphs nine to 12):

"What is an 'invention' (in the feel I am straightaway concerned with) is a topic bedevilled past times verbal formulae – together with past times the sweeping of problems nether the carpet. So, earlier I larn whatever farther I desire to choose just about of those problems out into the calorie-free of day.

But first: does it actually matter? Is it but a sterile declaration most the pregnant of words? To which I answer that whoever controls the pregnant of 'invention' controls what tin last patented together with thus an of import facial expression of industrial policy. There tin last but 1 justification for having a patent system, together with that is that it is adept for the people of the country. If the patenting of for sure things does to a greater extent than terms than good, it matters. Patents that are wrongly granted tin last rattling expensive to challenge together with may deter small-scale together with medium enterprises.

At the adventure of just about inaccuracy, patents are supposed to last granted for non-obvious advances inward technology. I said "at the adventure of just about inaccuracy". We feel that nosotros know 'technology' when nosotros meet it. And no incertitude that is correct, most of the time.

But it is non right all of the time. Therein lies the delusion. You tin examine that for yourself past times trying to abide by a Definition of 'technology' that everybody tin grip on. The to a greater extent than you lot try, the to a greater extent than you lot volition uncovering what a horribly imprecise concept it is. (Would it comprehend an astro-navigation chart? Naval tactics? Double-entry bookkeeping? The phonetic alphabet?) Many stimulate got tried to frame an acceptable definition, but to the best of my noesis none stimulate got succeeded. It is similar the every bit vexing question, "What is Art?". The difficult truth is this: concepts of that form out stimulate got no existence, together with words of that form out stimulate got no meaning, except past times human convention; but human beings are hopelessly inward disagreement at the margin. And it is, precisely, at the margin of uncertainty that cases come upwardly up for decision".

If Peter Prescott keeps demystifying patent law, the IPKat says, volition he nonetheless last allowed to sit down as a judge?

What is Art? Click here and here to abide by out