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Intellectual Property Office approves software patent for UK

More than just a program, apparently

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Software that allows programmers to program a mobile phone system remotely from a computer can be patented because it is more than just a software program, the Intellectual Property Office (IPO) has ruled.

The ruling overturns an initial decision that the invention is unpatentable because it consists of nothing more than a computer program.

The Patents Act says that something cannot be patented if it consists only of a program for a computer. The IPO has historically been stricter in denying software patents than European patent authorities, despite UK law being based on the European Patent Convention, on which the European Patent Office bases its decisions. The US allows software to be patented.

The patent for programming mobile phones was first registered by Intuwave, then passed to Symbian and finally to Nokia, which appealed an initial IPO decision to refuse it.

The invention allowed a computer to control a mobile phone while software was being developed, which Nokia said was an improvement over using the mobile phone's controls to develop software and using a computer emulator of the phone, which were the methods used until now for development.

IPO hearing officer Andrew Bartlett, deputy director of the IPO, upheld the appeal and allowed the patent to be registered because the invention made a 'technical contribution' when compared with previous inventions in the field, or 'prior art'.

The hearing officer judged the patent application in the light of two recent landmark court rulings on software patentability. The Court of Appeal ruling in a case involving Aerotel and Macrossan set out a four-step test to judge whether something fell outside the scope of patentability.

Then it also applied the rule laid out in a subsequent Court of Appeal ruling concerning mobile phone software company Symbian. In that ruling Lord Neuberger overturned the IPO's refusal of a patent because the technology was found to have made a technical contribution.

"Moving on to steps 3 and 4 [of the four-step Aerotel/Macrossan test], what I must now do is decide whether that contribution falls solely in excluded matter," said Bartlett in his ruling. "In doing that I will specifically address the question “is the contribution technical?” as [the] Symbian [ruling] dictates I must."

In the Symbian case Lord Neuberger found that the invention was not just a better computer program but turned the machine it ran on into "a better and faster computer". It therefore made a technical contribution.

"In my view, the particular way that the present invention overcomes the technical problems inherent in the prior art provides a technical contribution," ruled Bartlett. "Thus whilst the invention may be implemented in software it provides a technical contribution such that it is more than a program for a computer as such."

"I have found that the invention defined in the claims of the present invention makes a technical contribution and is not excluded [from being patented]," said Bartlett.

The ruling can be read here. (pdf)

Copyright © 2009, OUT-LAW.com

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

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