According to a recent press release, next week the High Court is to hear an appeal from a UK-IPO decision (Astron Clinica & others) on software patents.
The appeal, coordinated by the well-known name (in the world of software patents at least) of Beresford & Co., relates to the UK-IPO's practice, following their interpretation of Aerotel/Macrossan (see previous IPKat posts here, here, here or here), of refusing claims directed to computer program products, even when such claims refer to claimed methods that are otherwise seen to be allowable. The four patent applications in question had method claims that were all deemed to be allowable, but were refused solely on the grounds of having computer program product claims.
The companies allege that this practice undermines the ability of British industry to protect inventions reliant upon the development of new software. Each has developed novel software, the control and distribution of which is critical to the success of their business.
Nicholas Fox of Beresford & Co. says: “A lot of people think there is no problem here because disks and downloads are protected by copyright. However, that is just not true. Copyright protection only protects code against copying. In contrast, patent protection enables a company to monopolise an invention even if competitors independently come up with the same idea. In order to protect their commercial interests companies need patent claims directed towards the products and processes that are sold in the market place. In the case of computer based inventions this means that claims to disks and downloads embodying an invention are required.”
The IPKat looks forward to seeing what the High Court will have to say about the current practice at the UK-IPO, but has a very strong feeling that the appeal will go nowhere at this level. Not until Lord Justice Jacob gets a chance to have a proper look at the issue (which he didn't in Aerotel/Macrossan) will there be even a slim chance of the practice being overturned. Even then, it seems likely that the practice will be upheld, unless their Lordships in the Court of Appeal manage to pull together some complicated reasoning that complies with their previous decision yet comes to the opposite logical conclusion. How far will the appellants be prepared (or allowed) to go to pursue their case? And for how long will UK practice be diametrically at odds with that at the EPO?