The Thin End of the Software Patents Wedge


It's been a bad few weeks in the UK software world. First came this news:

the Honourable Mr Justice Kitchin has ruled today that the current UK Patent Office practice of flatly rejecting patent claims to computer program products is wrong.

Hitherto, there was a pretty clear rule in the UK: you cannot patent computer programs "as such" - although those two weasel words had already weakened the idea of an absolute ban. That was still a huge barrier to stopping the insidious slide towards the US software patent madness that produces what are known as patent thickets: a tangle of mutually destructive patents that essentially stop anyone developing anything for fear of being sued.

The only way to cope (partially) with patent thickets is to enter into cross-licensing deals with the other members of that thicket; but small companies and startups typically don't have anything they can cross-license, which means that instead of promoting innovation, patents just protect the rich and powerful companies, and preserve the status quo.

Then, as a consequence of that ruling, we had the UK IPO throwing in the towel instead of challenging it:

After the recent decision of Astron Clinica (IPKat posts here and here), and a decent two week period for reflection, the UK-IPO have now decided that they will not be appealing against the decision. Consequently, a new practice notice has just been issued by the UK-IPO

That practice notice concludes:

Kitchin J has now clarified the law in this area. He has decided that where, as a result of applying the test formulated in Aerotel/Macrossan, claims to a method performed by running a suitably programmed computer or to a computer programmed to carry out the method are allowable then, in principle, a claim to the program itself should also be allowable. However, Kitchin J made it clear that the claim to the computer program must be drawn to reflect the features of the invention which would ensure the patentability of the method which the program is intended to carry out when it is run. Where, but only where, these conditions are met, examiners will no longer object to claims to a computer program or a program on a carrier.

Note the fateful words at the end: “Where, but only where, these conditions are met, examiners will no longer object to claims to a computer program or a program on a carrier.” Never mind that the UK PTO is strictly limiting when programs can be patented, nonetheless the Rubicon seems to have been crossed.

Or, to put it less poetically, this is likely to prove the thin end of the software patents edge, as highly-paid lawyers contort ever-wider kinds of computer programs into a form that might just vaguely be construed as meeting the new conditions required for patentability. That's precisely what happened in the US, and unless something is done to roll this back in the UK, I fear we are hurtling thicketwards, with all the painfully prickly consequences for the UK software industry that this implies.

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