First, a spot-the-difference competition – only one invention below is patentable, according to the English courts:
• a system providing MP3 content only to those MP3 players compatible with that content
• a messaging system sending text messages only to members of a particular group by maintaining a group membership database at the network, updated using user-provided information
• a method providing an improved way of accessing data in a dynamic link library by restructuring the dynamic link library.
You’ll recognise the Symbian invention (number 3 if you need reminding), but what does it have that the others do not? Answer: a technical effect. And what was that technical effect? Put inelegantly, the program made the computer run faster.
As the debate rumbles on as to what is required of a computer program to take it out of the wasteland that is excluded matter, on the face of it, everyone’s agreeing that there’s no real problem to solve. The UK-IPO says it will continue to apply the Aerotel/Macrossan test (albeit with one eye on what the EPO is doing), the Court of Appeal says that applying this test will lead to the same result as the test applied by the EPO and the CIPA agrees that ‘applications to patent software should now be examined by the UK-IPO….on the same basis as they are at the European Patent Office’.
So what’s the fuss about? Well, without being unfair, I think I can say that the EPO has hardly been consistent in its approach to date – particularly with decisions such as Pension Benefits and Hitachi moving firmly towards the ‘any hardware’ approach, an approach rejected by the English courts – and I think it is right that the EPO has its chance to respond to developments in the English courts’ approach. Hence the questions now posed to the Enlarged Board in referral G 3/08. You can find the questions at http://www.epo.org/topics/issues/computer-implemented-inventions/referral.html – the devil is in the detail.
The Enlarged Board is not likely to give its answers for some time, and now is the time to inform it of the views of the SCL membership. The EPO has invited comments to be sent electronically, presumably to speed up the process of collation. I wonder if this is an example of the required technical effect?
I’d invite comments to be posted on this blog (anonymously if you’d prefer). To get the ball rolling, when I’m not worrying about my profile being edited by SCL (http://www.scl.org/site.aspx?i=bp10622) I’m thinking about the following:
• Do you agree with the recent decisions on specific patent applications made by the EPO and the English courts or have some truly patentable inventions been wrongly discarded? (My own view, for example, is that the CVON invention did appear to solve a technical problem.)
• Is it now inevitable that UK-IPO will reach the same conclusions as the EPO on any given software patent application?
• What about the EPO’s ‘any hardware’ approach? Is this now defunct?
• Is there in fact very little left to the computer program exclusion? I wonder how many rejected applications would have been caught by the other exclusions (in particular mathematical methods and business methods) if the computer program exclusion had not been available…..
• Is certainty more important than an increased number of software patents, and will the questions to the Enlarged Board provide greater certainty?
• Are we in danger of handling patentability ‘in a watertight compartment completely separate from novelty’, against the advice of Mr Justice Lewison in the AT&T and CVON cases?
I’d wager that software patentability is a key issue for many of the readers of this blog – whether you are a software provider, an open source evangelist, an IP lawyer or a patent examiner, you will have a view on what the Enlarged Board should do with these questions (polite answers only please).
In the meantime, I’m off to dream up new ways of making my computer run faster….
