The Court of Appeal appears to have ventured into legally irrelevant considerations in the course of giving judgment.

The Court identified its statutory interpretation task at paragraph 8 of the judgment -

"The 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. There has also been much political debate too: some urging removal or reduction of the categories, others their retention or enlargement. With the political debate we have no concern - it is our job to interpret them as they stand." (emphasis added)

Having so identified its task, it is surprising that the Court then went to the trouble of writing a mini-essay at paragraph 20 of the judgment (under the heading 'Other considerations') on the question as to whether the comparatively liberal approach to patenting of computer implemented inventions in the USA has proved to be a "good thing" -

"Fourthly despite the fact that such patents have been granted for some time in the US, it is far from certain that they have been what Sellars and Yeatman would have called a "Good Thing." The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call "transaction costs") is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such. There is evidence, in the shape of the mass of US litigation about the excluded categories, that they have produced much uncertainty. If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing the categories narrowly (and indeed for removing them) is made out. But not otherwise."

The question therefore inevitably arises whether the Court took these irrelevant considerations into account, even subconsciously, when formulating its decision.

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