For those who have not yet had enough of the recent kerfuffle over computer program patent claims in the UK, IPKat co-blogmeister David has written a short article on the subject. This was written at the request of Laurence Eastham, editor of the publication Computers & Law, and it will apparently be making an appearance in the next issue (not the latest issue: right). The article is already available online here, but unfortunately to subscribers only. The author is therefore making it available to all interested readers here. All constructive comments are welcome.
From Vicom to Astron Clinica
Reviewed by David Pearce
on
Monday, February 04, 2008
Rating:
Reviewed by David Pearce
on
Monday, February 04, 2008
Rating:
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Would it be possible for the IPKat to make files available from another blogspace (or perhaps to remove the underscore character from the name of the Google group)?
ReplyDeleteUnfortunately, the hostname for webspace allocated to a Google group includes the name of that group. Where the name includes an underscore, this too becomes part of the hostname. However, the underscore is not in the characterspace for hostnames, and the (relatively popular) squid proxy enforces this, making the files effectively inaccessible.
Actually, if anyone knows a work-around, your comment would be welcome.
I hadn't realised that squids would be a problem. Given that squid is open source, perhaps this is something the open source community should get round to fixing? In any case, the article has been made available on the ukpatents wiki here.
ReplyDeleteA few interesting cases in the last batch of EPO BoA decisions:
ReplyDeletehttp://legal.european-patent-office.org/dg3/pdf/t050740eu1.pdf
... a "software" application refused as lacking inventive step for lack of novel "technical" features. I guess the UK-IPO would have reached the same decision, but because it was excluded as a computer program/presentation of information.
Not so sure what the UK-IPO would have made of this one though:
http://legal.european-patent-office.org/dg3/pdf/t051137eu1.pdf
Finally,
http://legal.european-patent-office.org/dg3/pdf/t061543eu1.pdf
This provides a useful restatement of EPO thinking, in response to a challenge by the appellant to the "legal fiction" used in the EPO approach. It even (6.2) applies the UK Aerotel test to the subject matter, by way of comparison, to show how the same conclusion is reached by the different route. In effect,
EPO "The contribution is non-technical therefore the claim cannot be inventive"
UK-IPO "The contribution is excluded (or otherwise non-technical) therefore the claim is excluded"
I'm still not convinced that the EPO and UK-IPO are perfectly aligned on what is or is not "technical"...
Some comments, which become more important and therefore more contentious as they go on... you're welcome to ignore them, but you did invite comments :)
ReplyDeleteminor: typo at bottom of page 3 - Hearing Office rather than Hearing Officer.
Less minor: It's not just computer program "product" claims, it's computer program claims in general (see first line of judgment). I think that use of word "product" throughout the article is unecessary - although the UKPO have yet to issue a practice notice as far as I can tell so I could yet be proved wrong.
Getting more important: summary is potentially misleading. Implies that A/M judgment explicitly rejected computer program claims, when it didn't even consider them. The body of the article makes this perfectly clear, but sound bite summaries can be a dangerous thing and always the hardest thing to write.
Important: conclusions section highlights your anti-EPO bias (which you're free to do if you wish) but does so in a way that doesn't have any real meaning or interest value in my view.
Specifically: "such claims can resume being granted by the UKPO more or less in line with the EPO, but with the proviso that the UK test for patentability must be consistent with the Aerotel/Macrossan four step test in preference to the (still-developing) ‘technical character’ test at the EPO."
Implies that there is a great deal of uncertainty in the EPO approach and not in the UK approach. I would say that the exact opposite is the case as particularly evidenced by the fact that the courts have just overturned an important interpretation by the UK(I)PO of the A/M test. In reality, both approaches require further development and probably always will - technology doesn't stand still, so why should the law?
Consequently, I suggest avoiding entirely the issue of which approach is the more "refined" or "developed" since it is a pointless argument. Instead, how about focusing on the court's criticism of the EPO's recent case law which was phrased more in terms of inconsistency than extent of development? Could lead to an interesting discussion of the biting comments that are being thrown in both directions over the Channel at the moment.
If you don't want to go that far, then simply changing "still developing" to "criticised as inconsistent by the UK courts" probably still gets your point across but I think does so more accurately.
Gerontius
On the more minor points, thanks for pointing them out. On the more significant points, we will have to disagree as I think you are reading too much into it, inferring way beyond what I am actually saying. I am, by the way, not biased against the EPO (that would be rather inconsistent with being a patent attorney), I just wish that they could be a bit more honest in their assessment of excluded subject matter rather than crowbarring in the problem-solution approach.
ReplyDeleteIn any case, a revised verion will be appearing shortly, in an attempt to reduce the possibility for misunderstandings.
I'm still not convinced that the EPO and UK-IPO are perfectly aligned on what is or is not "technical"...
ReplyDeleteWell, I don't know about UK-IPO, but I can say with some conviction that EPO examination divisions are hardly aligned with each other (never mind with the BoA!) on what constitues "technical".
"perhaps this is something the open source community should get round to fixing?"
ReplyDeleteSquid isn't broken. It conforms (at least in this regard) with the RFC 952 (http://tools.ietf.org/html/rfc952).
Re "Well, I don't know about UK-IPO, but I can say with some conviction that EPO examination divisions are hardly aligned with each other (never mind with the BoA!) on what constitues "technical"."
ReplyDeleteFair point. It would be interesting to try and plot the limits of what an EPO examining division is willing to allow, for comparison with EPBoA precedents and with UK-IPO practice. The EPO doesn't bat an eyelid at software-implemented GUI features that "improve" device functionality, but I don't have equivalent experience of such cases in the UK-IPO, and post-Aerotel decisions suggest that such things would struggle in the UK. Same applies to stuff like seismic data processing.
David is uncomfortable with the EPO approach to inventive step, of "crowbarring" out of the analysis anything that ain't "technical". But, when the English courts drive a distinction between what's technically and what's commercially obvious, aren't they doing just as much "crowbarring"?
ReplyDelete