The entire Macrossan software patent ding-dong goes on. Geeklawyer has covered this in the past and his antipathy to Macrossan & software patents (despite drafting them himself - hypocrite) are a matter of record. The recent report, as covered by IPKat, that the EPO has declined to illuminate the matter is, I agree with IPKat, an opportunity missed.
Unlike the generous IPKat, however, I do not ascribe this modesty to any wholesome and objective desire for clarity and relevance.
Give the controversy of software patents and the unacceptable confusion between various decisions Justice Jacobs, refreshingly blunt as ever, took the issue head on and asked for clarity. His mistake may have been to enunciate this at paragraph 16:
Before moving on we would add three things. First there has been some political pressure on Europe to remove or reduce the categories of non-inventions…
Sadly this is the point: political controversy.
In the UK this dilemma has been dealt with by a long standing strategy, the fiction of Parliamentary supremacy. When faced with urgent issues of policy that Parliament had neither the time nor the inclination to deal with the UK judiciary uses Common Law to ‘discover‘ theories, policies and doctrines that, like enumerable but hidden theories of the the Universe, merely lie under a nearby legal bush to be found by any wandering judge. Having, like Pharaoh’s wife, found the lost and abandoned doctrine, they would then raise it into precedential manhood.
Crap, obviously.
The converse judicial strategy is to say: “Oh, heavens, this is far to important for we the humble judiciary to intervene in - we must lay obeisance to Parliament and Parliamentary supremacy; we shall wait for them to legislate.”
In the absence of such fictions the EPO has had to demonstrate creativity in it’s excuses: President Pompidou seems to have succeeded by blethering about there being insufficiently important clashes in the decisions.
It’s nice to see that other juridic theories matching common law evasiveness.
Shame about the law though; still, you can’t make a fortune without cracking eggs.
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