Larry EllisonÂs company Oracle has suffered a blow after a patent examiner refused to grant a patent for its method of converting a document from one mark-up language to another.
The patent that was applied for in 2002, simply converts text from SGML (Standard Generalized Markup Language) to another mark-up language such as HTML. Such an invention is not unique as a number of other companies have methods to perform the same task, but the conversion requires a great deal of human input, whereas OracleÂs method does not.
Under UK Patent law, computer programs and methods for performing mental acts are not generally patentable and as the program was deemed to be one or both of the aforesaid it was disallowed by the examiner.
Following the decision Oracle requested a chance to argue the case, which took place in August.
The Little Man Test
Oracle argued that the package in question was not concerned with computer programming, but with defining better rules for converting a document. The argument was based on the Âlittle manÂ test.
The recently established test, questions whether a process or artefact is new and non-obvious merely because a computer program is involved or whether the process would still be new and obvious if a little man could make and follow the decisions and commands at a control panel. According to the test if the little man can perform the necessary functions, then the computer program is incidental and the invention is not about computer programming at all. Â
Oracle stated that as the little man could convert the SGML to HTML by following the procedureÂ described in the patent application, the patent was not for a computer program.Â
However the judge at the hearing deemed the test to be inappropriate to the patent at hand and stated that the purpose of the invention was to speed up a process that would time along time if executed by the little man.
Stephen Probert wrote, Âa little man could never replace the computer in this invention without defeating the main purpose(s) of the invention,Â the main purpose being to replace a little man, who is far slower than a computer.
The little man test arose from a High Court case involving an application for an interactive betting system, by a company called CFPH LLC. In the aforesaid case Probert referred to the 1973 European Patent Convention that excluded computer programs because they were deemed to be harmful to the software market.
For OracleÂs application Probert wrote:ÂIf computer programs are not to be foreclosed to the public, then it is clear to me that I cannot allow this application to proceed to grant. Not only would the resent claims (if granted) foreclose computer programs to the public but, on my reading of the claims, there is little or nothing else that would be foreclosed by them.Â
Barrister at Northern Intellectual Property Chambers, John Lambert stated that the foreclosure element of ProbertÂs ruling was weak: ÂThis argument is attractive but it is hard to see how this reasoning can be upheld. If it is right, then no program would ever be patented, he wrote.ÂÂ