[GuestPost] 59% of IPKat readers say its time to overhaul patent exclusions

At the end of August (remember those halcyon days?), the IPKat published a post by KatFriend, Peter Arrowsmith (GJE) on the Court of Appeal's decision in Emotional Perception, together with a poll asking if it was time for an overhaul of the exclusions to patent protection.  Having given readers three months to cast their vote, Peter is back to share the results of the IPKat poll.  

Over to Peter:

"In a GuestPost three months ago I shared some thoughts on the recent Court of Appeal decision in Comptroller - General of Patents, Designs and Trade Marks v Emotional Perception AI Limited [2024] EWCA Civ 825. At the end of that article, we shared a poll asking whether it is time for an overhaul of the exclusions to patent protection. The results are now in, and they reveal that 59% of participating readers (105) are in favour of a rehauling exclusions to patent protection.

The list of non-inventions in Art. 52(2) EPC is now more than 50 years old. The list comprises a disparate group of topics with programs for computers lumped in with discoveries, mathematical methods, mental acts and aesthetic creations. As Peter Prescott QC observed in CFPH LLC v Comptroller-General of Patents, Designs and Trade Marks [2005] EWHC 1589 (Pat), it is miscellaneous rag-bag that cannot be provided in a logical group.

The legislative intent behind the list of non-inventions is difficult to follow. In Aerotel Ltd v Telco Holding Ltd and others, and Neal William Macrossan's application [2006] EWCA Civ 1371, the Court of Appeal noted that the travaux preparatoires to the EPC do not help much in understanding any overarching reasons behind the exclusions, nor how they should be interpreted. The best explanation for the computer program exclusion is probably that they were generally regarded as analogous to literary works which would benefit from protection by copyright. There was also a sense (acknowledged in CFPH) that searching the prior art would be problematic, given that binary code was not intelligible in a manual search. Whatever the intent, the 1970s legislators could not have anticipated how computer programs would have subsequently evolved and become an enduring feature in all aspects of technology. Today, the Courts and stakeholders are left with an exclusion whose original rationale cannot be entirely explained. We are left to try and make sense of it, and to find an interpretation that deals with developing technologies like machine learning and quantum computing.

The majority view is that it is now time for an overhaul and for a patent system that more fairly rewards investment in innovation, regardless of whether an invention involves an arbitrary technical effect. For those in favour of the status quo, I would ask – for how long should these exclusions be maintained without scrutiny? Another 50 years? All things must change eventually, and now is the time to grasp this nettle."

What sayeth dear legislators?