I first learned of SAS Institute Inc v World Programming Ltd  EWHC 1829 (Ch) (23 July 2010) from Martin Howe QC at the IP Bar Association garden party last Monday. Martin had been my opponent in Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd  FSR. 275 and he told me that he had just been in a case in which Ibcos had been discussed.
The case was reported on 23 July 2010 and I have written a case note about it on our NIPtech blog. The judge found that he was unable to resolve the case without guidance from the Court of Justice of the European Union and he ordered a reference to the Court under art 267 of the Treaty of the Functioning of the European Union.
The case is nevertheless an important one because the judge concluded that TRIPS and the WIPO Copyright Treaty have changed our law in that they require us to construe the Copyright, Designs and Patents Act 1988 in accordance with those international agreements. In particular, if Mr. Justice Arnold is right, those agreements require us to import an idea-expression dichotomy into English law.
Does that mean we also have to import Baker v Selden 101 US 99 and Judge Learned Hand’s filtration abstraction test?