Software developers have won back the right to patent
programs in Britain, but only in strictly limited
circumstances.
The change follows a successful appeal by software developers
against the UK Intellectual Property Office's (UK-IPO) former
practice of denying patent protection to all computer programs.
Last week UK-IPO issued a
Practice Notice that sets out the changes.
Andrew Bartlett, deputy director of UK-IPO, said the change
brings the UK more into line with the rest of Europe.
For example, in the past the program for the microprocessor that
controlled a patentable anti-braking system for motor vehicles was
excluded, he said. The manufacturers can now claim patent
protection for the program itself as well as the whole system.
Other examples of software that might be patentable could be
process control programs or programs that controlled DNA sequencing
systems, provided the algorithm performed by the program is
patentable, Bartlett said.
However, he did not expect a flood of new applications. Generic
programs such as word processors and spreadsheets were still not
patentable, he said.
The change follows a court challenge to UK-IPO practice that
followed a judgment in November 2006 in the cases of Aerotel Ltd v
Telco Holdings Ltd (and others) and Macrossan's Application [2007]
RPC 7 ("Aerotel/Macrossan"). In these cases, "the Court of Appeal
reinterpreted the law on patentable subject matter in the field of
computer-implemented inventions," the UK-IPO said.
At the time, the UK-IPO said that patent claims for computer
programs or for embedded programs were not allowable.
A group of patent applicants jointly challenged the change in
practice. They argued that if their programmed alogorithms and
equipment were patentable, they should also be able to protect the
underlying computer programs themselves. This challenge led to a
hearing before Mr Justice Kitchin in the High Court (Astron
Clinica's Application and others Applications [2008] EWHC 85
(Pat).
"In his judgment, Kitchin J has now clarified the law in this
area, and decided that patents should, as a result of applying the
test formulated in Aerotel/Macrossan, be allowed to protect a
computer program if, but only if, the program implements a
patentable invention," the UK-IPO said.
"This ruling is a narrow one which places a greater emphasis on
the substance of what has been invented than the words used in the
claim," the UK-IPO said. "It does not have the effect of making
computer programs generally patentable in the UK but it does allow
innovators to enforce all aspects of their patentable inventions
directly."
The UK-IPO said it will not appeal the judgment and will be
following it with immediate effect.
Links to further information:
A full copy of the Practice Notice can be viewed at
http://www.ipo.gov.uk/patent/p-decisionmaking/p-law/p-law-notice/p-law-notice-subjectmatter.htm
2. A copy of the judgement in the cases Aerotel Ltd v Telco
Holdings Ltd (and others) and Macrossan's Application [2007] RPC 7
("Aerotel/Macrossan") can be viewed at
http://www.bailii.org/ew/cases/EWCA/Civ/2006/1371.html
3. A copy of the judgement (Astron Clinica's Application and
others Applications [2008] EWHC 85 (Pat) can be viewed at
http://www.bailii.org/ew/cases/EWHC/Patents/2008/85.html.
4. What is patentable in the UK is determined by the Patents Act
1977 which is aligned with the European Patent Convention (EPC).
Among other things, this states that patents are not available for
computer programs as such.
5. The overall UK-IPO approach to computer programs (and other
exclusions from patentability, such as business methods) can be
found in the previous Practice Notice
here:
http://www.ipo.gov.uk/patent/p-decisionmaking/p-law/p-law-notice/p-law-notice-subjectmatter.htm
Source: IPO