In a press release of the United Kingdom Patent Office, the office has decided to appeal a recent High Court Decision in favour of Symbian, regarding software patents – See: http://www.gnn.gov.uk/Content/Detail.asp?ReleaseID=361438&NewsAreaID=2
The appeal is important since the ruling lacks clarity, claiming that examiners should apply the “Aerotel/Macrossan” test – a 2006 case which led to a new, four step test to determine the patentability of software applications.
The European Patent Office (EPO) had allowed the Symbian patent, and there is a certainly a need for a unified approach across Europe.
Traditionally, software, at least software per se., has not been considered patentable in the UK or Europe, as it has been classified as a glorious form of patenting a thought process. In the US, since State Street, anything new under the sun made by man is patentable, and thus Merryl Lynch’ application for business software was patented in the US and rejected in the UK.
Last year, Justice Jacobs, a leading British IP Judge explained why he did not think that including software in the range of patentable material would serve the industry. In re Bielski, an appeal pending before the Federaal Circuit Appeals Court (FCAC) in the States, the issue is up for reexamination.
The effectiveness of patents as a spearhead for technological advance in the software industry is an open question, and there is a large, vocal open-source lobby. Some of the reasoning, such as considering software ‘non-technical’ is somewhat rediculous, and secondary issues such as the difficulties of searching for software inventions – are not really issues that should dictate policy, but rather secondary considerations to be addressed by funding and training.
Discussion early this week with one of the partners at leading US Patent Attorneys, Needle & Rosenberg revealed that they think that it is now easier to get software patents in Europe than in the US.
Since copyright for software is good for preventing bootleg disks and downloads, but no clearer than patents at deciding whether there is an infringement when relating to retro-engineering and reprogramming, the issue is a critical one and it is a shame that there is so much uncertainly and confusion.
In Israel, the official position of the Israel Patent Office is that Sotftware per se. is not patentable, but software as part of a system having technological effect is. In practice, patents have been allowed for software in Israel as well.
