Sony's video metadata invention could be patentable in part

Restructure and reapply

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The Patent Office has rejected Sony's appeal to patent a video recording system because it was computer software, but has said that a claim structured differently could qualify for patenting.

The Patent Office originally refusal to grant a patent for technology it deemed was software. UK patent law says that a computer program cannot be patented. Sony appealed, and the Office's Deputy Director R C Kennell has just ruled on that appeal.

He said much of the original application was indeed a software program and could not be patented. He picked out some elements of the patent application, though, and said they were not simply a computer program and might be eligible for a patent.

Sony had applied for a patent for a data structure which dealt with metadata attached to video files. Metadata, which attaches to digital artefacts such as a song or picture and describes them, would contain information about each video shot and could be useful in editing, archiving and searching through video material.

The application was for a data structure, but the company was told that a data structure was basically a computer program. Since that ruling the approach to interpreting the law has changed in the light of the Aerotel and Macrossan Patent Office rulings.

Sony appealed, and the Patent Office has said that the application fails under both the old and the new approach. The office did say, though, that there were elements of the application that could be eligible for a patent.

Something can be patented if it has a "technical effect". Though the data structure itself was ruled out, Kennell said if it were incorporated into a network the new network might be patentable.

"It seems to me that claims according to either of the auxiliary requests, which require the incorporation of the data structure into a data communications network, would satisfy all the Aerotel/Macrossan steps," he said.

"The incorporation of a hierarchical database structure into a communications network of data processing devices so that metadata can be communicated between them provides in my view a contribution which is not disclosed or foreshadowed by the prior art cited on this application, which is not solely a computer program, and which is technical in nature."

Sony said the system would be particularly useful for the capture and editing of high definition images. The images themselves are large and can be hard to manage, so metadata could become a proxy for a shot, meaning that only the shots that were needed would have to be actually processed.

"This decision reaffirms the law that software cannot be patented, that a data structure is essentially software, but just because an invention contains data structures does not mean it cannot be patented," said John MacKenzie, an intellectual property partner at Pinsent Masons, the law firm behind OUT-LAW. "The "invention" needs to be considered, but a patent will not be granted for the data structure 'as such'."

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