A major plank of the UKPO’s written objections1 to my petition for leave to appeal, was that it was not then an "opportune occasion" for the House of Lords to review the general principles on which the Court of Appeal’s judgment in my case was based. And in that regard the UKPO pointed out that the President of the EPO had not then yet responded to the Court of Appeal’s suggestion that there be a referral to an EPO Enlarged Board of Appeal.
Moreover, even though the Appeal Committee of the House of Lords did not say as much, one suspects that the then imminent possibility of such a referral may have been highly influential in their decision not to grant me leave at that time. After all, the criteria against which the House of Lords assesses requests for it to hear appeals from decisions of the Court of Appeal specifically envisages refusing to give leave in a case "which ought [not] to be considered by the House at this time"2, even though such a case may well raise arguable points of law of general public importance.
So now that the EPO President’s letter has made it clear that no referral to an EPO Enlarged Board of Appeal is imminent, I am considering lodging a second petition to the House of Lords seeking leave to appeal. And the starting point for my considerations will be the case of Buttes Gas v. Hammer3, where the House of Lords having initially (in 1975) refused leave to appeal, subsequently (in 1980, on the crystallisation of previous uncertainties) gave leave to appeal (and went on to uphold the appeal itself).
19 March 2007
1 Presented to the Judicial Office of the House of Lords on 8 December 2006.
2 See practice direction 4.7 of the House of Lords Practice Directions and Standing Orders Applicable to Civil Appeals
3  A.C. 888