The UK courts continue to grapple with the difficult question of how the law around the patentability of software should be applied in practice. That's clear from the Court of Appeal's recent
The UK courts continue to grapple with the difficult question of how the law around the patentability of software should be applied in practice. That's clear from the Court of Appeal's recent decision to partially uphold Apple's appeal on the validity of patents for its touch-screen software. Criticism of the UK's Patents Act and the European Patent Convention – both of which state that computer programs "as such" are excluded from patentability - doesn't get much plainer than this: "It is regrettable…that because these apparently simple words have no clear meaning both our courts and the Technical Boards of Appeal at the EPO have stopped even trying to understand them." (Lord Justice Lewison). Nonetheless, the Court of Appeal's ruling in the Apple case gives some further insight into the UK courts' approach.
The Court of Appeal confirmed that simply because an invention is implemented through a computer program, does not mean that the invention is not patentable. When determining patentability, the courts will look for technical innovation, in other words, whether the invention "makes a technical contribution" to the art. Patentability will be decided on a case by case basis, according to the particular facts.
The appeal looked at the validity of two of Apple's patents:
The Court of Appeal disagreed with the finding that aspects of the 948 patent related to computer programs "as such" and were thus invalid for excluded subject matter. Lord Justice Kitchen noted that the patent addressed a technical problem (thus making "a technical contribution" to the art) and, whilst the solution to the problem offered by the patent was embodied in software, "an invention which is patentable in accordance with conventional patentable criteria does not become unpatentable because a computer program is used to implement it."
The Court of Appeal also reiterated the technical nature of the invention by noting its practical benefits: it presented a new and improved interface to application programmers, making it easier for them to write application software for a multi-touch device.
The Court of Appeal upheld the trial judge's decision that aspects of the 948 and 022 patents were invalid for obviousness.
The full judgement can be found at the following link: http://www.bailii.org/ew/cases/EWCA/Civ/2013/451.html
The Court of Appeal confirmed that simply because an invention is implemented through a computer program, does not mean that the invention is not patentable. When determining patentability, the courts will look for technical innovation, in other words, whether the invention "makes a technical contribution" to the art. Patentability will be decided on a case by case basis, according to the particular facts.
The appeal looked at the validity of two of Apple's patents:
- the "948 patent" (relating to computer devices with touch sensitive screens which are capable of responding to more than one touch at a time); and
- the "022 patent" (relating to ways of unlocking computer devices with touch sensitive screens).
The Court of Appeal disagreed with the finding that aspects of the 948 patent related to computer programs "as such" and were thus invalid for excluded subject matter. Lord Justice Kitchen noted that the patent addressed a technical problem (thus making "a technical contribution" to the art) and, whilst the solution to the problem offered by the patent was embodied in software, "an invention which is patentable in accordance with conventional patentable criteria does not become unpatentable because a computer program is used to implement it."
The Court of Appeal also reiterated the technical nature of the invention by noting its practical benefits: it presented a new and improved interface to application programmers, making it easier for them to write application software for a multi-touch device.
The Court of Appeal upheld the trial judge's decision that aspects of the 948 and 022 patents were invalid for obviousness.
The full judgement can be found at the following link: http://www.bailii.org/ew/cases/EWCA/Civ/2013/451.html