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Was the reason given by the House of Lords’ Appeal Committee, for refusing to give permission to appeal, objectively supportable?

Appeal criteria

The criteria against which the House of Lords assesses requests for it to hear appeals from decisions of the Court of Appeal, is contained in direction 4.7 of the House of Lords Practice Directions and Standing Orders Applicable to Civil Appeals, which provides as follows -

"Leave to appeal is granted to petitions that, in the opinion of the Appeal Committee, raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. A petition which in the opinion of the Appeal Committee does not raise such a point of law is refused on that ground. The Appeal Committee gives brief reasons for refusing leave to appeal but does not otherwise explain its decisions." (emphasis added)

Reason for refusal

The reason given in the House of Lords Report for refusing permission to appeal was -

"... because the petition does not raise an arguable point of law of general public importance."

Could the House of Lords’ Appeal Committee reasonably have concluded that there was no arguable point of law?

When the following factors are considered together, it would seem that the House of Lords’ Appeal Committee could not reasonably have concluded that there was no arguable point of law -

  1. 1. In his decision granting leave to appeal to the Court of Appeal, Lord Justice Jacob of the Court of Appeal (whose Court of Appeal judgment the House of Lords has chosen not to disturb) ruled that -
     
    1. (a) "The issue of the Art. 52 exclusions is ... uncertain ..." (Reason 1);
       
    2. (b) "[Macrossan’s skeleton arguments] have a real prospect of success" (Reason 2).
       
  2. 2. The Court of Appeal judgment (which judgment the House of Lords has chosen not to disturb) pronounced that -
     
    1. (a) 'The [Article 52(2)] provisions about what are not to be "regarded as inventions" are not easy. Over the years there has been and continues to be much debate about them and about decisions on them given by national courts and the Boards of Appeal of the EPO. They form the basis of a distinct industry of conferences and are the foundation of a plethora of academic theses and publications.' (paragraph 8)
       
    2. (b) '... it is our job to interpret [the Article 52(2) provisions about what are not to be "regarded as inventions"] as they stand. As the decisions show this is not an easy task.' (end of paragraph 8 and the beginning of paragraph 9)
       
    3. (c) "It is clear that a whole range of approaches have been adopted over the years both by the EPO and national courts." (paragraph 24)
       
    4. (d) "The decisions of the EPO Boards of Appeal are mutually contradictory. ... There are indeed at least four differing points of view." (paragraph 25)
       
    5. (e) "... the time has come for matters to be clarified by an Enlarged Board of Appeal." (at paragraph 25) [and the Court of Appeal Judgment goes on, at paragraph 76, to suggest that the EPO Enlarged Board of Appeal should clarify "What is the correct approach to adopt in determining whether an invention relates to subject matter that is excluded under Article 52?"]
       

Could the House of Lords’ Appeal Committee reasonably have concluded that the matter was not of general public importance?

When the following factors are considered together, it would seem that the House of Lords’ Appeal Committee could not reasonably have concluded that the matter was not of general public importance -

  1. 1. In his decision granting leave to appeal to the Court of Appeal, Lord Justice Jacob of the Court of Appeal (which Court’s judgment the House of Lords has chosen not to disturb) ruled that -
    "The issue of the Art. 52 exclusions is of public interest ...."
  2. 2. The Court of Appeal judgment (which judgment the House of Lords has chosen not to disturb) pronounced that -
     
    1. (a) "Billions (euros, pounds or dollars) turn on it [i.e. the correct interpretation of Article 52(2) of the EPC]." (paragraph 24)
       
    2. (b) "... whereas a few years ago the Comptroller only had one or two hearings a year concerned with these topics, he now has about four a week .... " (paragraph 17)
       
    3. (c) "An arms race in which the weapons are [business method or computer program] patents has set in. The race has naturally spread worldwide ... " (paragraph 18)
       
    4. (d) "Over the years there has been and continues to be much debate about [the Article 52(2) provisions about what are not to be regarded as inventions] and about decisions on them given by national courts and the Boards of Appeal of the EPO. They form the basis of a distinct industry of conferences and are the foundation of a plethora of academic theses and publications. There has also been much political debate too: some urging removal or reduction of the categories, others their retention or enlargement." (paragraph 8)
       

Could the House of Lords Appeal Committee reasonably have concluded that there was no arguable point of law of general public importance?

Given that, as would seem to have been shown above, the House of Lords’ Appeal Committee -

  1. (a) could not reasonably have concluded that there was no arguable point of law; and
     
  2. (b) could not reasonably have concluded that the matter was not of general public importance,
it follows that the House of Lords’ Appeal Committee could not reasonably have concluded that there was no arguable point of law of general public importance.

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