March 19, 2008

More software could get UK patents

Court case raises hopes, but subject to appeal

By Jeremy Kirk IDG News Service

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An appeals court decision in London is causing confusion over long-standing European regulations that have generally meant computer programs can't be patented.

The case could eventually mean that software companies applying for a UK patent have a better chance of receiving one, although the decision is to be appealed.

In July 2007 the Intellectual Property Office (IPO) rejected a patent filed by Symbian for a system that makes accessing dynamic link libraries – or files used by more than one application – more reliable.

The IPO said Symbian's innovation was computer code and therefore not patentable. The Court of Appeals, however, overturned the decision this week and said the system is patentable.

The IPO is now lodging another appeal, although not on the grounds of whether Symbian should get the patent.

The IPO is concerned that the latest appeals courts decision takes a different interpretation of case law over how to decide if an innovation merits a patent, said deputy director Andy Bartlett. "From our point of view, we are interested in some clarity in how we should be interpreting the law," he said.

Legal precedent does allow for a patent to be granted for computer code in one instance: if the computer code makes a "technical" contribution, Bartlett said.

For example, code that coordinates how a car's brakes function would be patentable. However, an improved version of a word processing program would not qualify, he said.

A four-part test established in a previous patent case is generally used as a guide to whether the particular code can be excluded from the ban on patents for computer programs, Bartlett said. The test was intended to resolve fuzziness around what constituted a technical contribution.

In the latest case, the judge used the test, but not in the way it had been applied before, the IPO contends. The judge also determined that Symbian's innovation improved the reliability of a computer, constituting a technical contribution that qualified the idea for a patent.

Further complicating the case is the fact that the European Patent Office (EPO), an organisation that let companies apply for patents that are valid in 38 European countries, awarded Symbian the patent.

Both the EPO and the IPO are bound by the European Patent Convention of 1973. Usually, both entities arrive at the same conclusion, although they use different methodologies when evaluating patent applications, Bartlett said.

This time, however, "there's a bit of conflict, and that's not great," Bartlett said.

In the US, computer programs are regularly patented.

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