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26th January 2008 - Software can be Patented

Court gives hi-tech companies the power to patent software

By Megan Murphy, Law Courts Correspondent Published: January 26 2008 02:00 | Last updated: January 26 2008 02:00

Hi-tech companies will be able to patent software programs after a key court decision that may move the UK closer to Europe in its treatment of computerrelated inventions.
The High Court yesterday said that the Patent Office was incorrectly applying the law in automatically rejecting claims for computer programs, in a case brought by four small British businesses.

The ruling should help level the playing field in an industry dominated by corporate titans such as Microsoft and Oracle, intellectual property experts said.
"This is a win for hard-working inventors and small businesses, who need patent protection to take advantage of any niche in the market," said Ed Round, a patent attorney at Marks & Clerk.

The dispute centred on a practice note issued by the Patent Office in November 2006, stating that computer programs were generally not patentable in the wake of a high-profile ruling in a case brought by an Australian inventor, Neal Macrossan.
The guidance put the UK at odds with the European Patent Office, which has allowed companies to patent computer programs if they can demonstrate some sort of innovative technical effect.

The four companies, which were seeking to patent technologies ranging from skin imaging techniques to semi-conductor chip design, appealed to the High Court last year against the Patent Office refusal of their claims.
All four distribute their products on computer discs or by downloads over the internet.

Mr Justice Kitchin yesterday ruled that contrary to the Patent Office's practice note, computer programs were not automatically excluded from patentability.
If companies can show that their programs make a substantive inventive contribution they will be eligible for protection regardless of the fact that they are distributed on a computer disc, the court said.
The decision should ease the burden on small technology companies who were going to Europe to seek patent protection, where the hurdle for computer-related patents is generally lower, lawyers said.

Before yesterday's judgment, Mr Round said he had routinely been advising clients to apply for patents abroad rather than risk having their claims rejected in Britain.
Controversy and confusion has swirled around the issue of software patent protection for years, and there are still marked discrepancies between the European approach and the more generous approach to intellectual property protection taken in countries such as the US and Japan.
A spokesman for the Patent Office said the body was "carefully considering'' the ruling.


Copyright The Financial Times Limited 2008