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UK software patents get green light
Thursday, March 20 2008
by Sheila McDonald


A landmark ruling on software patents in the UK is good news
for developers in Ireland, according to a leading patent
attorney. 

Earlier this week, the High Court overturned a prior decision
by the Intellectual Property Office (IPO) to refuse a patent
application. That application was regarding a Symbian program
that makes accessing dynamic link libraries (DLL) used by
more than one application on a device more stable. 





In his judgment Mr Justice Patten observed that the IPO's
decision in this case illustrated a conflict which exists
between the UK-IPO and the European Patent Office (EPO) about
how the patentability of inventions involving computer
programs is assessed. The case highlights differences between
the two organisations because while the IPO rejected
Symbian's patent application, the EPO granted a patent for
the invention.



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. Therefore, while it
is possible to get patents in the UK for some inventions
involving computer programs, it is not possible to get
patents for innovations which are seen to be solely computer
programs, such as an improved word processing program. 



The way that the IPO decides if an invention is patentable is
different from that used by the EPO, but the two approaches
should generally give the same answer. 



As with all High Court decisions the judgment is binding on
the IPO until such time as it is overtaken by the judgment of
the Court of Appeal.



The IPO has said that it believes that when deciding whether
Symbian's computer implemented invention was patentable, Mr
Justice Pattern failed to properly apply the
"Aerotel/Macrossan" test -- a 2006 case which led to a new,
four-step test to check applications. Given this, it is
intending to appeal the judgement with a view to seeking
clarification from the Court of Appeal, because it believes
that the new judgement has created uncertainty about how the
Aerotel/Macrossan test should be applied.



Law firms in Britain have claimed that this week's ruling is
a huge boost for the native software industry and, according
to Michael O'Connor, patent attorney at the Irish patent and
trademark solicitors, Cruickshank, the ruling is also good
news for software developers in Ireland.



O'Connor, who recently warned that Irish firms may not be
fully capitalising on their ideas by failing to patent their
software in Europe, told ENN that as Irish law often takes
British judgements into consideration, local developers will
be better protected. 





"The practice of the Irish Patents Office won't change
significantly following the ruling because it doesn't have
the same examination capacity as the UK IPO would have, "
said O'Connor. 





"However, UK decisions, although not binding in the Irish
courts, can be very persuasive, so it will have an effect. In
the unlikely event that the Irish Patents Office should
refuse a patent in this field, then those decisions will be
quite convincing if brought before an Irish court," he
added. 





O'Connor also added that the ruling would likely have an
impact from an enforcement point of view both in Irish courts
and elsewhere. 





"The UK is obviously a major market so the judgement brings
the UK closer in line with other European jurisdictions, and
[it] also sends a signal to software developers that
they'll be able to enforce the patent decisions in Britain if
necessary." 



Not everyone is likely to be so overwhelmed by the UK
decision and its implications for software developers,
though. 



When the proposed Computer-Implemented Inventions directive
was put forth by the European Commission back in 2005,
IrishDev and KDE.ie, who at the time claimed to represent
more than 20 percent of software developers in Ireland
between them, voiced opposition. They argued that the
proposed directive would stifle competition and innovation in
the software industry.



The proposed directive, which sought to harmonise existing
patent legislation by removing barriers to trade in patented
products within the EU, was eventually rejected during its
second reading.