In October, the UK Court of Appeal handed down a judgment (Symbian Ltd v Controller General of Patents) opening the way for broader computer software patents in the UK. This decision held that computer software would be patentable where there is a technical contribution even if that contribution is within the computer and not an external effect. Under European and UK patent law, computer programs as such are not patentable.

Symbian’s application related to an improved method of accessing files from a dynamic linked library in a computer operating system. The invention sought to overcome problems of malfunction or incompatibility when new functionality is added, leading to increased speed and reliability in the operating system.

The Symbian decision is the latest in an ongoing struggle in the last few years between inventors, the UK Intellectual Property Office (UKIPO), the UK courts and the European Patent Office (EPO) on the patentability of computer software. The EPO has been thought to have taken a more liberal approach.

Since the Symbian judgment was delivered, the president of the EPO has referred a series of questions concerning the patentability of computer software to a special group, the Enlarged Board of Appeal, within the EOP, looking to build a consensus on how to approach the issue.

Opinions on questions of law made by the Enlarged Board of Appeal will, in practice, bind the EPO and are influential on other patent offices and national courts. Indeed, the House of Lords has refused leave to appeal to the UKIPO in the Symbian case on the basis of the pending opinion of the Enlarged Board of Appeal.

In the meantime, the UKIPO has stated it will apply the Symbian decision when considering patent applications for computer software. In effect, the Symbian ruling opens the way for the UKIPO to grant patents for a wider class of computer-based inventions than has previously been the case in the UK. The decision will therefore be encouraging for those applicants who seek patent protection for a computer program.

Anne Christopher is a senior associate at law firm CMA Cameron KcKenna