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Lord Hoffmann in agreement with Tufty the Cat on software patents?

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

The IPKat was very pleased to receive this morning an email from his "Sydney correspondent", Thai Loi at the University of New South Wales, which he kindly passed on to me. Thai writes:

"I had the pleasure of attending the 23rd Annual Conference of the Intellectual Property Society of Australia and New Zealand Inc (IPSANZ) held on 11-13 September 2009 in Auckland, New Zealand. Lord Hoffmann attended the conference as an international guest speaker and delivered an entertaining keynote speech on the patentability of inventions using computer software to an audience of over 200 IP professionals. Lord Hoffmann also displayed on the projector a portrait of Tufty the Cat and referred to the amicus curiae submission by Tufty Sylvestris to the EPO Enlarged Board of Appeal [for pending case G 3/08] in his speech and on page 1 of his accompanying conference paper. I thought that the IPKat team would be pleased to learn that your website has been endorsed as a well-known IP blog by such an eminent authority."

Thai also enclosed a copy of the speech, which makes for very interesting reading. Lord Hoffmann made some very pointed remarks about the way that the bounds of patentability are dealt with at the EPO, in the English and Australian courts and in the US, aiming most of his fire at the latter. If the gist of the speech can be summarised in a few words, it seems that Lord Hoffmann generally prefers the current EPO approach to the muddled UK Aerotel test (one wonders what would have happened if Aerotel/Macrossan had gone further to the House of Lords, as it then was, instead of stopping at the Court of Appeal), and considers that the US has lost its way, particularly after State Street opened the flood gates to all sorts of normally unpatentable ideas becoming patentable. Regarding the current situation over Bilski, Lord Hoffmann summarises it as follows:

"We shall have to see what the Supreme Court makes of it all, but the difficulty about setting the clock back to before State Street as Judge Mayer would have them do, is that a lot of people have invested money on the strength of business method patents which would be invalidated by a return to orthodoxy in applying the human behaviour principle, to say nothing of the people who have invested in software patents liable to [be] destroyed by the Federal Circuit's unorthodox interpretation of the practical application principle."

Personally, I was particularly taken by the following comments at the beginning and end of the speech:

"In Europe, the President of the European Patent Office has made a reference of a number of questions about inventions based on software to its Enlarged Board of Appeal. At the last count, precisely 100 amicus curiae briefs had been filed, including one from a cat named Tufty who also appears in a well-known IP blog."

"There have been a number of impressive amicus submissions, including that of Tufty the Cat, saying that the reference is inadmissible and should be dismissed."

I tend to agree with (almost) everything the Right Honourable Lord says on the subject, and am very flattered that the mewsings of such a humble cat are considered in such elevated circles. I now very much look forward to the day when the EPO Enlarged Board say that they agree with me too.

Full post as published by IPKat on September 16, 2009 (boomark / email).