Department catches MMR data; IGT four-time loser in patent lottery

So often the big things that happen in intellectual property law are tucked away in little cases that deal with procedural issues. A good example is Sayers and others v Smithkline Beecham plc and others, an England and Wales Queen’s Bench Division last Wednesday from Mr Justice Keith, picked up by LexisNexis Butterworths' All England digests.

The United States Department of Health and Human Services was involved in US proceedings in which it was alleged that the MMR (measles, mumps, rubella) and MR (measles, rubella) vaccinations in young children helped cause autism. Wishing to rebut these claims the Department sought to obtain evidence impugning the methodology of the petitioner’s expert evidence. Although the Department was not able to get its hands on the reports directly, it discovered that the same methodology had been used by the same laboratory to produce evidence in English proceedings and that expert reports had been prepared which impugned that methodology. The Department therefore applied for permission to obtain copies of those reports under the Civil Procedural Rules, rule 5.4.

In these proceedings the question arose as to whether there was a strong reason in the interest of justice for the Department - which was not a party to the English litigation - to obtain copies of those medical reports. Opposing this application it was argued that, once the Department got hold of the report, it could use the data at will and the English courts would be powerless to stop it and that disclosure of the medical reports, which were confidential, was contrary to the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8 reads:

"Article 8 – Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The Department offered an undertaking that the data would remain anonymous and that it would only be used as evidence in the US proceedings.

Keith J granted the Department's application. In the interests of justice there was strong justification for allowing the Department to obtain the reports. The existence of any causative link between autism and the MMR and MR vaccinations had was of immense public interest and it would not serve in the interest of justice if the judicial authorities in the US were denied the chance to consider all the evidence. Anonymising the reports would ensure that no confidential information was released and that there was no violation of the data protection laws. Even if there was a violation of any Article 8 right, it was justified in order to protect the Department's right to a fair trial, which would be compromised if it was unable to show that the methodology behind the petitioner’s evidence was flawed, and justified for the protection of health.

Left: Although he has no opinion as to the efficacy of MMR vaccinations, the IPKat waits on the roof till the vet goes away

MMR - the facts: National Health Service version here, BUPA version here, Spiked here and Telegraph here


The smoke clears, the uncertainties are resolved - yet still the appeals against refusal of a patent for an invention relating to excluded subject matter continue. IGT v Comptroller General of Patents [2007] EWHC 1341 (Ch), a Patents Court decision of Mr Justice Warren last Thursday (here, on BAILII), demonstrates the continuing efforts of the courts in England and Wales to achieve a degree of consistency in their application of the new Aerotel/Macrossan rules for determining whether inventions concerning excluded subject-matter are excluded from patentability.

Right: the new dispute resolution system for determining the outcome of dubious patent applications under Article 52 is revealed. Unsuccessful applicants have a 10% chance of success, which is probably better odds than they get from the Patents Court, and the chance of a "bonus" appeal to the Court of Appeal

IGT made four applications to patent computer gaming systems, each raising similar issues since they all concerned the addition and operation of ‘bonus’ games within the context of fruit machine style gaming, introducing a proportionate scheme to govern the manner in which those games made payments to successful players. All four applications were rejected as being schemes, rules and methods for playing a game and thus not inventions within the European Patent Convention, under Article 52 of which

"(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1 …

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers …

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such".

IGT appealed. The question for the court on appeal was whether the contributions of the four applications to the prior art, were indeed a way of operating a game, or a tool for playing a game or a new machine.

Warren J dismissed the appeal. In each of the four patent applications before him the contributions disclosed in the applications, properly viewed, were changes to the game-play which involved a change to the schemes, rules or methods for playing the game. Accordingly, all four applications concerned excluded subject matter and the hearing officer had been right to refuse them.

The IPKat thinks it would be helpful for readers to see what sort of claim is falling foul of the law, so here's the claim in patent application GB0411822.0 ("Method apparatus and system for perpetual bonus games"):

"1. A gaming system comprising:

a gaming machine programmed to be operated by a wager from a player to play a primary game, to display an image associated with the primary game, and to determine a game outcome associated with the primary game; and

at least one computer programmed to play a bonus game and to display an associated image, and to determine if a qualifying activity has occurred during the primary game, to alter parts of the image associated with the bonus game independent of an input from the player until the qualifying activity is determined to have occurred, to be operated by player input to alter parts of the image associated with the bonus game independent of the game outcome of the primary game if the qualifying activity is determined to have occurred, to be operated by a termination input, and to alter parts of the image associated with the bonus game independent of an input from the player after the termination input is received until a qualifying activity is determined to have occurred again,

whereby the player can enter and exit an ongoing said bonus game whilst the bonus game is in progress, the computer being programmed to provide a bonus prize award determined by player participation in the bonus game".