Software patent ruling causing confusion in Britain

LONDON – A new British appeals court decision appears to clash with European regulations that generally forbid granting of a patent for a computer program.

At issue is a patent applied for by Symbian and rejected in July 2007 by the U.K. Intellectual Property Office (IPO). Symbian sought a patent for a system that makes accessing dynamic link libraries — or files used by more than one application — more reliable.

The IPO rejected the application, saying that the innovation was computer code, which is not patentable. The Court of Appeals, however, overturned the decision last week and said the system is patentable.

How the court came to that decision is of concern to the IPO, since the most recent appeal is a different interpretation of case law over how to decide if an innovation merits a patent, said Andy Bartlett, the agency’s deputy director. The IPO is now appealing the latest decision, but not on the grounds of whether Symbian should get the patent.

“From our point of view, we are interested in some clarity in how we should be interpreting the law,” Bartlett said.

Legal precedent does allow for a patent to be granted for computer code in one instance: if the computer code makes a “technical” contribution, Bartlett said.

For example, code that coordinates how a car’s brakes function would be patentable. However, an improved version of a word processing program would not qualify, he said.

A four-part test established in a previous patent case is generally used as a guide to whether the particular code can be excluded from the ban on patents for computer programs, Bartlett said. The test was intended to resolve fuzziness around what constituted a technical contribution.

In the latest case, the judge used the test, but not in the way it had been applied before, the IPO contends. The judge also determined Symbian’s innovation improved the reliability of a computer, constituting a technical contribution that qualified the idea for a patent. Further complicating the case is the fact that the European Patent Office (EPO), an organization that let companies apply for patents that are valid in 38 European countries, awarded Symbian the patent.

Both the EPO and the IPO are bound by the European Patent Convention of 1973. Usually, both entities arrive at the same conclusion, although they use different methodologies when evaluating patent applications, Bartlett said.

This time, however, “there’s a bit of conflict, and that’s not great,” Bartlett said. The outcome of the Symbian case could give eventually mean that software companies applying for a patent in the U.K. may have a better chance of receiving one.

The European conditions for granting a patent for computer code are much stricter than in the U.S., where computer programs and business methods can be patented.