When Australian inventor Neal Macrossan sought patent protection for a Web-based program that guides users through the process of incorporating a limited company, the application flew through the Australian Patent Office with ease. However, when Macrossan sought similar protection in the UK, he encountered turbulence.
The UK Court of Appeal, equivalent to the U.S.'s Federal Circuit Court of Appeals, ruled in August that Macrossan's invention was a method for doing business and therefore unpatentable under European law. Not only did the court reject Macrossan's patent, but also drew a line in the sand. The judge who wrote the opinion, Lord Justice Jacob, criticized the Appeals Court for the European Patent Office (EPO) for issuing patents on business methods, and said in no uncertain terms that the UK will never go along with the EPO's interpretation of European patent law.
However, experts believe Macrossan's invention would have been patentable had he filed with the EPO.
"If Macrossan had worded his claim differently so that it included a little hardware, which would have been certainly possible for this system, then that would have passed the test in the EPO," explains Alastair McCulloch, a patent attorney in Jones Day's London office.
Slow To Change
Whether or not the Enlarged Board of Appeal takes up the case, what is clear is that Europe is a far cry from adopting the U.S.'s interpretation in State Street.