Can You Patent Software in the UK?
Can you patent software in the UK? If you have an idea that you think is a breakthrough, you might want to consider submitting it to the patent office for protection. Besides the obvious reasons, there are some other requirements that you must meet. You must be an inventor, have a technical character, and have an inventive step in order to qualify for a patent. Below is a brief overview of how to patent software in the UK.
Exclusion of computer programs from patentability
The EPC 1973 prohibits patent applications on computer programs, but does not prevent computer programs from being patented in certain circumstances. Patentability of computer programs may be limited if the computer program fails to achieve some technical effect. To avoid exclusion, the program must be abstract in nature, involve a numerical form, or be an algorithm. To meet the criteria for patentability, a program must have a “technical character” that contributes to the state of the art or fall in an excluded area.
As the BoA noted, “the invention focuses on a data processing method that is implemented on a computer” and has no therapeutic effects, the applicant argued that the claim scope was limited to the steps performed by the computer, and that the computer had no therapeutic effect.” The BoA rejected the applicant’s argument, stating that the invention was a medical method for controlling the timing of the monitoring process and the amount of radiation incident on a patient. Therefore, the claim was refused under Article 53(c) EPC.
As a result, it is crucial to read the guidelines carefully, as they must be in accordance with the Patent Act. Moreover, the guidelines should be interpreted in context of the Patent Act, as the examiners would be left with discretion when deciding whether or not to grant a patent to a CRI. Applicants should avoid using wording that camouflages the substance of a computer program in the specification, as this might lead to a misunderstanding and delays in the examination process.
The purpose of the patent is to advance science and secure exclusive rights to inventions. While European patents do not have such a clear purpose, the U.S. constitution states that it serves two purposes. First, it protects the exclusive rights of the inventor, and second, it protects the interests of society. It protects the rights of the inventors and is beneficial to society. Second, the patent must disclose the method used to practice the invention.
Requirement of technical character
Requirement of technical character to patent computer programs in the UK reveals a legal quagmire. The European legal system no longer requires transformation of Nature but rather a concrete form of utility. This criterion for patentability demonstrates the limits of case-by-case reasoning. But the question is whether it is an overreach of patent law or a necessary prerequisite for innovation.
One example is the reel spinning mechanism of a one armed bandit gambling machine. It included software-implemented timers that controlled the startup and braking of the reel. It kept up the interest of the player, whereas it was a method of conducting business. The same logic applies to computerized business operating schemes. In order to be patented, the software must be loaded into a processor and must cause it to perform the function.
Another example of a computer software invention is a GUI. Such software is hard to patent in the UK, but if it has a technical merit, it may be eligible for a patent. In Europe, software is banned from patenting, and software inventions are only eligible for patent protection if they are technical. This decision illustrates the limits of software patentability. Even GUIs, such as the Symbian judgment, are hard to patent. But software that provides a new or improved interface may qualify as an invention.
The requirement for technological character to patent computer programs in the UK has become a hot topic recently. The European Patent Office has recently issued new directives recognizing this requirement. While the EC has been very strict in defining the definition of an invention, the requirement for technical character is not an exception. For software to qualify, it must produce further technical effects. These effects must be beyond the ordinary physical interactions of a computer program.
Requirement of inventive step
In the UK, the law on the patentability of software inventions does not reflect current thinking at the EPO. The requirement for an inventive step is broader than for hardware, requiring a computer to make a certain physical or functional change to the claimed invention. In general, it applies to software that uses technical apparatus, not to the software itself. For example, if a person in the United Kingdom creates a CD and uses it to address a host computer, a single person in the UK can be deemed to have invented that feature, regardless of where the computer is located.
The UK Patent Office published the results of its consultation on the requirement for an “inventive step” in the UK. While the European Commission’s original text sounded like it would prohibit patenting pure software ideas, it later clarified that there must be some physical component of the invention to be patented. Thus, patentable software is based on features that make it unique, and the market and competitive environment. Patents are not granted to individuals or companies, but to companies that have developed it and can prove it is useful to others.
The UK government has made clear that it wants to exclude ‘non-technical’ features from defining an invention. However, the EPO and UKPO have not adopted this approach, and the UKPO’s stance on software patents is similar to the EPO’s, but there is still a gap between the two. In the meantime, the EPO continues to refuse applications that do not meet this standard.
The EPO’s stance on the issue of software patents is a matter of debate. While the EPO has been criticized for being too strict, the UK has remained vigilant in resisting the idea. The Hargreaves report also urged the UK to resist any attempt to impose software patents. In the European Parliament, the proposal was taken up for second reading in 2005. The European Parliament voted against the proposal, but the Council of Europe later decided to undo the amendments.
Examining for patentability
The UK Patents Act 1990 (Cth) contains no explicit definition of “software.” However, it does recognize that software can be a’method of manufacture’ subject to the protection of a patent. It should therefore be included as a patentable subject matter. A patent should be granted to a computer programmed in a way that differs from existing or commonly used computers. Fortunately, there are some recent cases to help you understand the patentability of software.
The Enlarged Board explained that there are several ways to assess the patentability of software. One method is to examine whether the software is purely ‘functional’. However, this approach may have a practical limitation. For instance, it may be difficult to patent software that has no underlying hardware. In this case, it may be more difficult to prove utility. The Enlarged Board, however, explained that it is used for all claims and not just those that are technical. This approach is consistent with the UK patent system and gives applicants some legal certainty.
There is a more straightforward method of determining the patentability of software. The UK Patent Act 1977 includes a section on Article 52 of the EPC similar to Article 52 of the EPC. Section 1 of the UK Patent Act states that subject matter is patentable if it is an ‘invention’ and is ‘inventive’. Furthermore, the UK Patent Act 1977 requires that the subject matter be in some way industrially useful or has an industrial application.
When assessing the patentability of computer software, UK courts have been referring to European Patent Office decisions in recent years. These decisions have influenced the UK patent system. For example, the UK Patent Office has endorsed the principle of a “technical contribution” in determining the patentability of computer programs. A recent case, Fujitsu v Telco and Macrossan’s Application, referred questions to the Board of Appeal for further clarification.
In 2005, the UK courts began addressing the scope of ‘excluded subject matter’. The UKIPO had diverged from EPO practice, but the CFPH LLC judgment was closer to the UKIPO and the EPO’s practice. It also criticised the EPO’s practice of paraphrasing the exclusions. This case highlights the need for a better understanding of how patentability applies to software.