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Court of Appeal rejects software patent application

Written by Aasim Durrani on 05 January 2015

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The Court of Appeal has upheld the findings of the Comptroller General of Patents and the subsequent High Court judgment in refusing to grant a software patent. The judgment affirms the position at English law that software is generally not capable of patent protection unless it contributes something beyond the program itself. In Lantana Limited v The Comptroller General of Patents, Design and Trade Marks [2014] EWCA Civ 1463, the Court of Appeal found that the software in question carried out a function which could also be carried out without the need of a computer, thereby rendering it incapable of patent protection.

The patent in question involved the transfer of files between two computers connected to the internet, whereby one computer would request a file, which would then be transferred to it from the other computer. The applicant company argued that a patent had been granted in a previous case involving the remote transfer of files from one computer to another. The Court of Appeal, however, was not convinced and Arden LJ noted that the decision relied on by the applicant was over 20 years old. She reasoned that a novel contribution to the state of the art at one point in time did not constitute a technical contribution for all time.

The judge also noted that software is not excluded from the scope of patent protection per se, but confirmed that the "invention must make some technical contribution over and above that provided by the program itself, such as an improvement in the working of the computer". She went on to note the absence of an inventive step in the applicant's patent application and rejected the appeal, thereby affirming the findings of the Comptroller General and the High Court judgment of Birss J.

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