Software Patents and Microsoft

1 October 2008

By Tim Mount

Microsoft have filed for a patent in the US on software that monitors workers at their desks by remotely measuring their productivity and physical wellbeing. The media have dubbed it the Big Brother patent but it is officially known as Monitoring System 500 (MS500) and may be granted within the year.

MS500 works via wireless sensors that measure respiration, heart rate, blood pressure and facial movements and enable workers to be monitored while at their desktop or laptop computers or via mobile phones or handheld computers. If physiological measurements suggest a worker is stressed, or frustrated, a message will be sent to management requesting assistance.

The only people to receive such a high level of monitoring in the past have been those in high-risk jobs such as pilots and astronauts. Unions are concerned that employees could lose jobs on the basis of physiological assessment by computers.

The US (and Australian) more liberal position on patents for software has traditionally differed from the UK where software patents are related to thought processes, which are not patentable. The Boards of Appeal of the European Patent Office (EPO) has allowed companies to patent computer programs if they can demonstrate some sort of innovative technical effect. This may for example be something like increased memory access.

The case law of the EPO Boards of Appeal is not binding on the EPO member states and different national courts acting on different cases may take a different view of patentability. The position on software patents in the UK has been recently considered by the High Court and UK Intellectual Property Office (UKIPO).

Tim Mount Tim Mount is a trainee solicitor