Welcome

  • Naked Law is written by technology lawyers from Mills & Reeve. Our team is (mostly) based in Cambridge, England. We write about the latest legal and regulatory developments relating to information and communication technology, e-commerce, and privacy.

    Please send us an email or post a comment if you want to join in the discussions on Naked Law.

Disclaimer

  • The information on this blog is not legal advice. You should not rely on it and we don't accept liability in connection with it. Please read our full disclaimer and let us know if you would like us to advise on any legal issue.

« Spam prosecution in Oz | Main | Facing the music »

Comments

Aaron Trevena, BSc Hons

You are wrong about the UKs current position - it actually allows any software to be patented, even if trivial. Some of the Patents allowed by the UKPO are truly shocking.

It's obvious you are lawyers rather than actually working in IT. All but a tiny tiny handful of people in the industry are against this directive as it is pretty much the equivilent to a bunch of lawyers coming to your street and demanding that the speed limit is increased by 15 miles per hour because that is the status quo.

The industry didn't ask for software to be patentable, it has been working very well for everybody without software patents.

How would you like it if legal arguments were patented? Software is no more an invention than a legal argument, but with a processor rather than judge (or coronor or jury) to interpret it.

It's all very well lawyers claiming nothing is changing when what is happening is that a loophole is being turned into a right rather than being fixed. Computer Programs are explictly excluded from patenting, but the EPO and others have chipped away over the years adding the "as such" caveat which basically nggates it as there is no example anywhere of what is "software as such" vs "software".

It is quite absurd that lawyers were surveyed by the UKPO more than software engineers and IT analysts in their "consultation", and utterly bizarre that patent lawyers are able to lobby from within the EP on this issue. It's identical to allowing Rumpole of the Bailey to lobby on behalf of his, only marginally less respectable, clientel.

A

Winny More

As usual, this debate swings straight to the extremes; and extreme positions regrettably do not progress the real issues.

UK law does not permit software -- as such -- to be patented. The "as such" provision has always been there. In this respect there has been no change for quite a long time -- and the previous UK law was if anything more favourable. EPO law has probably shifted in favour of wider grants; the Directive would actually narrow this.

The essence of the "as such" provision is that the law does not prevent otherwise patentable inventions being patented just because they use computer software to put them into effect. What it does prevent is something which would otherwise be unpatentable, from being patented just because it is implemented in computer software. Confused: the reason this is different from other fields is that if the invention were in the mechanical field that fact that a new (and inventive) mechanical contrivance was used would be patentable in its own right.

There are good example where computer software patents have been rejected by the UK Patent Office because of this rule. Of course the UK Patent Office do grant patents for many computer implemented inventions. That does not mean that they are valid, just that they appear to the Patent Office on the evidence available that they are. One real issue is not so much that these should not be granted because they are for software, but that, whatever they relate to, they are not valid because they are not inventive. It would be valuable if the software community could devote more energy to improving the standard of rejection of non-inventive patents.

As to the wider debate: there are undoubtedly some inventions for which "software" patents -- usually highly inventive and complex algorithms used in computing systems -- which are valuable and deserve protection. There could well be an issue about whether 20 years protection is right for some much more minor "innovations"; just as there may be questions as to whether copyright for 70 years is really appropriate for computer software. However when the pendulum is pulled to the extreme of no protection, it makes it that much easier for it to swing all the way back to total protection.

As for the jibe about lawyers, remember that the software industry is much wider than the software engineers and analysts identified in the last commentator's comment. And there are a large number of lawyers (and patent agents) who represent it, and have worked in it, still work in it, and support the current position -- and many such clients. Their views, as well as that of the software business the commentator portrays were consulted -- I was there -- and that was despite latter views often being extreme and misinformed.

If only the debate would address the real issues ....

The comments to this entry are closed.