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BlackBerry inventor escapes UK patent fees

Visto patent declared invalid

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Research In Motion (RIM), the company behind BlackBerry mobile devices, will not have to pay patent licence fees to a rival email software company after the High Court ruled that the rival's UK patent was invalid.

RIM took the court case to revoke a patent owned by Visto, which makes email software. It also asked the courts to declare that its software and machines did not infringe the patent.

Though Mr Justice Floyd said in his judgment that RIM's technology did infringe on the ground covered in the patent, but that the patent was invalid because it was a computer program and was not inventive enough.

The Patents Act, which is based on the European Patent Convention, says that anything which is solely a computer program cannot be patented.

"Although [the claim] is not novel in itself, it is novel within the new combination [of hardware]," said Mr Justice Floyd. "But this is simply the effect of running the program on the computers. It is providing for data to be delivered from one element to another, so that the data is accessible to a user at another computer."

"That is exactly the sort of thing that computers do when programmed. It does not seem to me that that is enough of a technical effect to render the invention patentable," he said.

Visto's patent was for a "system and method for synchronizing electronic mail across a network". but the court found that the use of communications protocol http to route emails from a corporate network to a device was obvious, and therefore not worthy of a patent.

Mr Justice Floyd pointed out that the fact that a technology involves a computer program does not automatically exclude it from patentability. "The exclusion only bites if the invention is only a computer program," he said. "The mere fact that an invention involves a computer program in some way does not exclude it from patentability."

In this case, though, he ruled that the technology was simply a computer program.

The patentability of technology which may or may not qualify as software has long been a controversial area in UK law.

A landmark ruling in a case involving inventor Neal Macrossan last year has set down a new set of rules on how courts should decide whether or not technology consists solely of a computer program and therefore cannot be patented.

The UK Intellectual Property Office (UK-IPO) has recently had to change its guidance on the issue, though, after the High Court said that some computer programs could be patented. It demanded the re-examination by the UK-IPO of six patent applications and said that the UK-IPO's guidance on the issue was too sweeping.

"I do not detect anything in the reasoning of the Court of Appeal [in the Macrossan case] which suggests that all computer programs are necessarily excluded," wrote Mr Justice Kitchin in the ruling.

Copyright © 2008, OUT-LAW.com

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

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