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Court rejects UK web lotto game patent appeal

No 'relevant technical effect'

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The High Court has dismissed an appeal against a Patent Office ruling that refused to grant a patent for an online lottery game. It reasoned that the patent application did not support any technical contribution other than the provision of specific web pages.

Shopalotto.com was hoping to patent an online lottery game that uses brand names instead of numbers.

UK patents, like European patents, are only supposed to be granted for inventions which are capable of industrial application, which are new and which involve an inventive step. Schemes for performing mental acts and computer programs "as such" are among the exclusions from the scope of patentability.

Shopalotto.com's application was therefore turned down by the Comptroller General of Patents, Designs and Trade Marks on the grounds that it fell under one of the exclusions from patentability set out in the Patents Act 1977.

The Buckinghamshire-based company appealed to the High Court, arguing that the patent application concerned not just a computer program, but a new game. It pointed to a Patent Office ruling of 1926 to argue that games are traditionally patentable.

The High Court disagreed, Mr Justice Pumfrey pointing out that the 1926 ruling could not determine how to interpret the 1977 Act.

According to Judge Pumfrey, the real question to be asked in determining whether a patent application for a computer program falls within the exclusions is whether it creates a “relevant technical effect, or, more crudely, whether there is enough technical effect”.

The answer, he wrote, can be found by taking the traditional two-stage approach adopted by the Courts:

“First, determine what the inventor has contributed to the art over and above a computer operating in a new way as a matter of substance and, second, determine whether this contribution lies in excluded matter or, on the contrary, whether it consists in a technical contribution or effect. The contribution must be considered as a matter of substance so as (for example) to prevent patents being granted for such things as novel computer programs on a carrier such as a compact disc.

“An invention may be viewed as a solution to a concrete technical problem. Merely to program a computer so that it operates in a new way is not a solution to any technical problem, although the result may be considered to be a new machine. It follows that an inventive contribution cannot reside in excluded subject matter.”

Mr Justice Pumfrey said Shopalotto.com's application does not put forward any contribution to the art apart from providing web pages. The fact that the brand-based game set out in the web pages allows for brand promotion means that it contains elements of “methods of doing business” – which are also excluded from the rules of patentability.

He dismissed the appeal.

See: The Ruling 

Copyright © 2005, OUT-LAW.com

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

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