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Is software patentable? Episode 1

Written by Tim Mount on 10 February 2009

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A thorny question which is perhaps destined to be never completely answered. But then one of the most fundamental patent law questions is not black and white either. Does the Application display an inventive step is a question that often is going to take some arguing in today's world. As ever patent law (make that almost all law) reveals itself to be a creative art rather than a box ticking exercise.

In light of a recent decision in the Court of Appeal regarding an appeal in the Symbian v Comptroller General of Patents case the United Kingdom Intellectual Property Office ("UK IPO") has issued new guidance on the patentability of computer programs. It runs as follows:

The Court of Appeal by and large approached the question of whether Symbian’s invention was excluded as a program for a computer as such by looking for a "technical contribution". In doing so it confirmed a line of UK case law dating back to the EPO Board of Appeal decision in Vicom The Court also confirmed that the Aerotel/Macrossan test is intended to be in substance the same test as that relied on in the prior UK case law. Since both tests are legitimate for determining excluded matter, examiners will apply the structured approach of Aerotel/Macrossan to address the fundamental question whether a claim falls solely within the excluded matter. The Office considers that as a matter of practice this will achieve outcomes consistent with the Court of Appeal judgment in Symbian more reliably.

The Court of Appeal rejected of the UK IPO appeal and confirmed there will be no further appeal to the House of Lords. The statement to concentrate on is that the Symbian case confirms "that the Aerotel/Macrossan test is intended to be in substance the same test as that relied on in the prior UK case law".

Means nothing to you? Read Episode 2 and we will attempt to elucidate you even less.

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