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Larry's little man can't get a UK software patent

'Too much control over sales of computer programs'

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Oracle has been told that it cannot patent its method of converting a document from one mark-up language to another in the UK. Part of the reason was that a patent would give Larry Ellison's company too much control over sales of computer programs.

The invention was a simple means of converting text from SGML (Standard Generalized Markup Language) to another mark-up language, such as HTML. Oracle, the world's largest enterprise software company, filed for a patent in 2002 because, while such a conversion could be done by others, a lot of human input was required.

Methods for performing mental acts and computer programs as such are not patentable in the UK and a patent examiner decided that Oracle's invention was one or both of these and therefore not patentable.

So Oracle requested a hearing to argue its case. That took place in August and Hearing Officer Stephen Probert published his decision this month. He ruled against Oracle.

The little man test

Oracle tried to argue that its application was not about computer programming at all, that it was only about better rules for converting a document from one standard to another. It based its argument on the "little man" test.

Established in another recent case, this endearingly-named test asks whether an artefact or process is new and non-obvious merely because there is a computer program; or would it still be new and non-obvious even if the same decisions and commands could somehow be taken and issued by a little man at a control panel, operating under the same rules? If the little man can do the needful then the computer program is merely a tool, and the invention is not about computer programming at all.

Oracle's point was that a little man could convert SGML to HTML by following the procedures described in its patent. Therefore, this is not a patent for a computer program.

But the Hearing Officer had issues with the little man, deeming him an inappropriate test for Oracle's application. Where there is an artefact or an industrial process being operated under computer control – such as an automatic pilot or a machine making canned soup – the little man can help. But the whole point of Oracle's application is a way of doing something by computer that would take a long time manually.

Stephen Probert wrote, "a little man could never replace the computer in this invention without defeating the main purpose(s) of the invention." In short, little men are slower than computers.

The High Court ruling that introduced the little man was issued in July. It involved applications from a company called CFPH LLC for two patents for networked interactive betting systems, designed to give users up-to-the-minute information before placing their bets.

Stephen Probert drew on other guidance in CFPH's case, where the judge had pointed out that the European Patent Convention of 1973 had excluded computer programs from the scope of patentability because they would do more harm than good.

The policy behind the exclusion was that computer programs as such "could not be foreclosed to the public under patent law." The argument runs that to grant a patent for software would stifle the market.

Mr Probert wrote of Oracle's application: “If computer programs are not to be foreclosed to the public, then it is clear to me that I cannot allow this application to proceed to grant. Not only would the present claims (if granted) foreclose computer programs to the public but, on my reading of the claims, there is little or nothing else that would be foreclosed by them."

John Lambert, a barrister with Northern Intellectual Property Chambers, was the first to report on the Oracle decision in his blog. He speculates that the foreclosure element of Mr Probert's ruling is weak. “This argument is attractive but it is hard to see how this reasoning can be upheld,” he wrote. “If it is right, the no computer program would ever be patented.”

Mr Probert also decided that Oracle's application related to a mental act, another ground for rejecting it.

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Copyright © 2005, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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