Michael Herman
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Technology companies will find it easier to safeguard their innovations in the UK after a court ruled that software should receive wider patent protection.
The Court of Appeal said today that complex software such as programmes designed to make mobile phones and computers work faster can be patented in the UK.
Previously, manufacturers could claim commercial exclusivity for their products under copyright laws but had less legal protection for underlying technical processes.
As a result of the ruling, developers are likely to find it easier to secure approval from the UK’s Intellectual Property Office (IPO), which has traditionally been reluctant to grant patents to cover software.
William Cook, a partner at Simmons and Simmons, said the court’s decision would bring the UK’s patent regime into line with Europe, which is much more open to granting software protection.
The ruling relates to a case in which the IPO had refused to grant a patent for an accelerator programme designed to make iPods, mobile phones and computers run quicker.
The High Court had previously ruled that the application’s developer, Symbian, an IT group part-owned by Nokia, should be granted a UK patent. The Court of Appeal today endorsed its decision.
Lawyers said that the IPO, which appealed the High Court's initial decision, will now have to take a softer, more innovation-friendly approach to this type of computer software.
Jeremy Morton, a partner at Fasken Martineau, the law firm, said: “It is clear that the UK IPO has been applying too restrictive a test. The message is software inventions are clearly patentable.”
Lawyers added that the ruling will not only allow developers to secure patents in the UK but will also strengthen the status of any Europe-wide patents they hold.
Historically, the reluctance of the IPO to grant patents in this country has forced many to apply to the European Patent Office (EPO) in Munich instead. Those patents are regarded as valid in the UK unless challenged in court, whereby they are relatively easy to overturn.
Mr Cook said that after today’s ruling European patents will be harder to challenge in British courts.
The ruling is likely to provoke criticism from those who argue that large technology companies are already too powerful. Robin Fry, a partner at Beachcroft, said: “Whether there should be monopolies on new ways of operating mobile phones and cameras is still a controversial issue. We need clear guidance from Brussels as to whether allowing these kind of patents helps our economies or stifles innovation.”
Accelerator programmes, which are packaged into operating systems, are one of largest growth areas in software development. Niche companies such as Symbian compete with technology giants Google, Microsoft and IBM.
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To bring everything down to its lowest demnominator will get us no-where in life. Kicking dirt of your shoes is slightly different from advanced computer software. Albeit I have to still be on your side of the fence, it is affording too much protection, but yet the TRIPs agreement allows it.
David Gibbs, Derby, UK
Process to kick the dirt off my feet before entering a house. So all of you who have been kicking the dirt off your feet before going in the house now owe me a royalty for ever time you do this. I of course will sell license agreements and group discounts on my foot kicking process.
Paul Bahre, Granby, CT, USA
Great. Now you won't be able to program in the comfort of your own home in case you tread on some company's gratuitous patent. And who's going to stop exactly the same problem of frivolous idiotic patents happening here as in the US?
Tim, NFA,
Hmm, How long before the Amazon one-click patent is used here. Software Patents benefit precisely one group of people: Lawyers. Even in the U.S. where this madness started, there is a growing realisation that Software Patents harm innovation, (http://news.bbc.co.uk/1/hi/business/3722509.stm).
David, Hampshire, UK
Why doesn't someone ask software developers if they want software patents? You'll struggle to find a single developer in favour of them. Instead you will see lawyers quoted on this issue, and lawyers are the only profession with any opportunity to benefit from software patents.
Philip, London,
"If Symbian made engines for cars and ..."
I hold the patent on car anologies. My lawyers will be intouch!
This is the level of foolishness which you will increasingly see.
A state-transition within my brain is property of someone else.
God bless lawyers and their universal wisdom.
Lee, Manchester,
Patents were devised at a time when innovation was depressed because inventors knew that their efforts would be stolen. Lack of innovation is not a problem in software and thus protection is not needed. Indeed the current free exchange and reuse of ideas is part of the reason why. This ruling will stifle software innovation as corporations use patents to stifle competition.
Alain D D Williams, Watford, uk
It's simply a ruse for lawyers to make more money and for the big boys of software to bully any small company (re: IBM & Sun in their early days). The money being wasted in the US over software patents tells it all.
I'm surprised at the ignorance of the Appeal Court after the arguments in the EU!
Dictatot of Europe, London, UK
If the open market be a football game, software patents are the equivalent of buying a formation, so that no other team can use it. The team with the most money with eventually buy all the formations, then nobody will be able to play. Any new formation will be quickly hauled into court by FatCat Utd
Ian, Wantage, UK
SW is, by definition, mere formal expression of prior art from other disciplines; it is not innovation. SW patents are used to establish monopoly through threat of litigation, as challenging even manifestly invalid patents is prohibitively expensive -- SW patents stifle innovation, not enable it.
Thomas, Glasgow, Scotland
We had excellent protection on software with trade secrets, instant worldwide and very effective (as Microsoft's endless anti-trust 'disclosure' lawsuits show). So we give up worldwide excellent protection for a UK only patent and have to give away our trade secrets? What a disaster.
R S, Brussels,
Devestave, cars aren't software. Given a physical device, I can build an exact replica -- thus, patents protect the novel implementation of a device. Given software *idea*, I *CAN NOT* build an exact replica -- I will need to invest extensive time and money in developing an implementation.
Rupert P. Fillywick, San Francisco, USA
The difference is between *implementation* and *ideas*. A physical patent covers a novel implementation. A software patent covers a novel *idea*. It's very easy to create ideas, but it's very hard to create a novel, working implementation.
Rupert P. Fillywick, San Francisco, USA
Software patents are too easy to abuse. Almost all of are them either -
1. About obvious features - i.e., Amazon's patent on one-click shopping;
2. Involve very minor improvement of concepts known already for years.
Thanks to the court, true innovators are now under the menace of wild lawsuits.
MC, Jerusalem, Israel
Software patents deny computer users the freedom to design free software which benefit all of humanity. They are a bad idea.
Any piece of complex software uses thousands of different ideas. Allowing software patents creates a minefield for anyone who wants to write even the simplest program.
Øyvind Sæther, kristinehamn, Sweden
If Symbian made engines for cars and developed one that used less fuel and provided more power would you deny them a patent for that plh? Why should the software industry be unique in not being allowed to protect innovations that make computers run faster and consume less power?
devestave, Leamington, UK
Symbian has been given the right to steal the work of others by this appalling patent. Software patentability doesn't safeguard one's innovations - it puts them under the threat of a legion of third-party patents. The CoA's decision may be legally sound but it is immoral and it is economic folly.
plh, Aberystwyth, Cymru