FFII UK

Recent court judgements give mixed messages on patentability of software in the UK

February 25th, 2008

Following the Court of Appeal judgement in the Aerotel/Macrossan case of October 2006. the UK IPO (Intellectual Property Office, the body formerly known as The Patent Office) adopted a policy of flatly rejecting patent claims on computer programs. Australian “inventor” Neal Macrossan had sought to patent an automated system for compiling documents required for incorporating a company under UK law. The IPO rejected this as both a business method and a computer program as such, and therefore unpatentable under Article 52 of the European Patent Convention. The ruling placed UK-IPO practice directly at odds with that of the EPO, which has a permissive approach to patent claims on software. However, the January 2008 High Court judgement in the AstronClinica et al. case led to a partial reversal of this policy. The case concerned patent applications by five companies, which the IPO had already found to include patentable subject matter, including semi-conductor chip design and image quality in laser printers. In each case, the patent application involved a method and a computer program to carry out the method; the IPO had determined that the method itself was patentable, but the program was not, and therefore refused the patent applications. The companies appealed to the High Court, which ruled against the IPO, to the effect that if an invention driven by a programmed computer is patentable, then patent claims on the program are also allowable.

Accordingly, the IPO has revised its guidelines on patent claims involving computer programs.

Nonetheless, the door apparently remains closed on pure software patents, where there is no “technical effect” outside of the software. In a judgement dated 6 February 2008, the High Court upheld the IPO’s rejection of a patent application by tech company Autonomy for a system for searching for files on a computer.

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