At paragraph 26(1) of the Court of Appeal Judgment, the Court gave the following summary of the "contribution approach" (and identified where it came from and how the Court of Appeal had itself previously expressly rejected it) -

"Ask whether the inventive step resides only in the contribution of excluded matter - if yes, Art.52(2) applies. This approach was supported by Falconer J in Merrill Lynch but expressly rejected by this Court."

Yet in adopting the Comptroller's suggested 4 step test (refer to paragraphs 41, 47 & 49 of the Court of Appeal Judgment), steps 2 and 3 of which are as follows -

"(2) identify the actual contribution;

(3) ask whether it falls solely within the excluded subject matter",

the Court of Appeal seems have to revived Falconer J's expressly rejected "contribution approach". And wouldn't a suggestion otherwise merely be an exercise in semantics?

Also, is this not unsurprising given the Court's apparent fondness for the "contribution approach" which it showed at paragraph 32 of the Court of Appeal Judgment when it said -

"What then of the first, the "contribution" approach? Were the question open for free decision now, we think there is a lot to be said for it."?

www.ukcorporator.co.uk