A row is brewing over the lack of consistency surrounding the protection of software rights, and it needs to be resolved if the UK is to stay in step with European law, say experts.

Last month a High Court judge upheld an appeal from software firm Symbian following the rejection of a patent application it made to the UK Intellectual Property Office (IPO) ­ – an application that had already been approved by the European Patent Office (EPO).

Under UK law, patents can only be issued for inventions using software as part of their operations, not for software that affects the running of computers.

A four-step procedure known as the Aerotel/Macrossan test is applied to determine whether or not protection can be granted, but doubt surrounds the validity of this method.

The IPO, which used the Aerotel/Macrossan to inform its Symbian decision, will launch an appeal against the ruling by the end of this month. The organisation argues a lack of legal clarity is making it difficult to be consistent.

“Our main reason for appealing is that we want to know what the test we need to apply is,” said Andy Bartlett, deputy director at the IPO. “We are concerned about being able to apply the law correctly when it comes to deciding on individual cases. There are issues about whether or not the law is clear.”

The IPO’s decision to keep fighting is somewhat unusual, said Dr John Collins, partner at law firm Marks & Clerk.

“The IPO is supposed to be government’s mediator for appointing patents in course with current legislation. If a judge says that this is the law, then who are they to take this view?” he said.

The battle could end up before the House of Lords, said Collins. A previous attempt to take the issue to this stage failed, but a ruling at the highest legal level may be the only way to stop UK law from diverging with Europe, he said.

Any changes to the handling of software patents is likely to come gradually, said Kim Walker, partner at law firm Pinsent Masons. A radical directive to reform patent law was thrown out of the European parliament in 2005.

Whatever happens, the final results of the Symbian case will have a bearing on anyone who makes or uses software as part of their business. The important thing for the IT industry is that a clear and balanced set of rules are established, according to trade association Intellect.

“We should like to see the rules about what is and is not patentable applied across the European Union in such a way as to give the same result in all member states,” said Jennifer Carlton, senior programme manager at Intellect.

“The UK IPO has been out of step with the EPO and we hope that the Symbian case will serve to bring them more in line,” she said.