The Patents Act says that something cannot be patented if it consists only of a program for a computer. The IPO has historically been stricter in denying software patents than European patent authorities, despite UK law being based on the European Patent Convention, on which the European Patent Office bases its decisions. The US allows software to be patented. The UK IPO now states that Software that allows programmers to program a mobile phone system remotely from a computer can be patented because it is more than just a software program. The ruling overturns an initial decision that the invention is unpatentable because it consists of nothing more than a computer program.
The patent for programming mobile phones lies with Nokia, which appealed an initial IPO decision to refuse it. The invention allowed a computer to control a mobile phone while software was being developed, which Nokia said was an improvement over using the mobile phone’s controls to develop software and using a computer emulator of the phone, which were the methods used until now for development.
The deputy director of the IPO, hearing officer Andrew Bartlett, upheld the appeal and allowed the patent to be registered because the invention made a ‘technical contribution’ when compared with previous inventions in the field, or ‘prior art’. He judged the patent application in the light of two recent landmark court rulings on software patentability. The Court of Appeal ruling in a case involving Aerotel and Macrossan set out a four-step test to judge whether something fell outside the scope of patentability.
Bartlett also applied the rule laid out in a subsequent Court of Appeal ruling concerning mobile phone software company Symbian (see previous article). In that ruling Lord Neuberger overturned the IPO’s refusal of a patent because the technology was found to have made a technical contribution.
In the Symbian case Lord Neuberger found that the invention was not just a better computer program but turned the machine it ran on into ‘a better and faster computer’ and did therefore make a technical contribution.
Bartlett therefore concluded that in the present case a technical contribution is made and it is not on this basis excluded from being patented.