Although I've written elsewhere about the recent court case of Symbian v Comptroller General of Patents, noting that it was bad news, I hadn't realised quite how bad the news was until I went through the complete judgment.
It's plain that the judges in question, who to their credit tried their level best to understand this mysterious stuff called software, failed to grasp the central issue of what software is. As a result, they have passed down a judgement that is so seriously wrong it will cause a huge amount of damage in the future unless it is revoked by a higher court.
The case in question is summed up in the opening section:
This is the judgement of the court to which all members have contributed. It is on an appeal brought, with the permission of the Judge, by the Comptroller General of Patents against a decision of Mr Justice Patten. He allowed an appeal by Symbian Ltd against the Comptroller's decision refusing UK Patent Application No GB 0325145.1 ("the Application"), on the ground that the alleged invention was excluded from patentability by section 1(2) of the Patents Act 1977.
The issue raised on this appeal requires us to consider the reach of the exclusion of "programs for computers" from patentable inventions, a topic which is inherently difficult and on which there is apparently inconsistent authority domestically and in the European Patent Office ("EPO").
Basically, the UK patent office appealed against an earlier appeal against its own refusal to grant a patent to Symbian for a programming technique. Yes, you read that correctly: the Patent Office was trying to get an appeal against its refusal to grant a patent struck down, because it didn't believe that the original patent application should be allowed. Through its own appeal, the UK Patent Office was trying to establish what could and could not be patented in the world of code.
As the summary above comments with a certain exasperation, this is “a topic which is inherently difficult and on which there is apparently inconsistent authority domestically and in the European Patent Office”.
The topic my be complex, but the reason why it is complex is simple: patent lawyers and their friendly legislators have tied patent legislation into shapes that make the Klein bottle look boring in an attempt to insert a loophole into the generally-accepted rule that software is not patentable.
It is not patentable because it consists of algorithms, which are inherently mathematical in nature. You don't have to believe me - just ask Donald Knuth, widely regarded as the greatest expert on computer programming, who wrote the following on the subject of patenting software
I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.
Nor is it possible to distinguish between "numerical" and "non-numerical" algorithms, as if numbers were somehow different from other kinds of precise information. All data are numbers, and all numbers are data. Mathematicians work much more with symbolic entities than with numbers.
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