High Court rewrites UK software patent rules

Symbian's win could benefit UK software makers

The High Court has passed a ruling that for the first time allows computer programs to be patented in the UK.

The decision came about as the court upheld an appeal from Symbian following the rejection of an application the software firm made to the Intellectual Patent Office (IPO).

Symbian filed for a patent relating to the way computers use a library of functions that can be accessed by programs. The claim was discarded by the IPO last July, on the grounds that it related to software-based innovation - the IPO says patents are not available in the UK for solely computer-based programs, only for inventions that use software programs.

But yesterday Mr Justice Patten ruled that making such exclusions puts UK software companies at an unfair disadvantage compared with rival developers in Europe, where the legal landscape works differently. The European Patent Office (EPO) has already approved Symbian's application.

The decision represents a major breakthrough for the UK software industry, said Nick Wallin, patent attorney at law firm Withers & Rogers.

“All companies that invest in research and development should be free to obtain patent protection for their developments without being exposed to a series of arbitrary and outdated exclusions that undermine the value of their inventions,” said Wallin, who represented Symbian during the case.

And the High Court's decision could lead to greater harmonisation between UK and European patent offices, according to Dr John Collins, partner at Marks & Clerk.

"Throughout the judgment, there was repeated reference to the impossible division in treatment at the UK Intellectual Property Office and the European Patent Office, said Collins.

"Whilst the UK office recognises its examination process is different to that at the European level, it states that this resolves in the same outcome. This clearly is not the case, when the EPO accepts the same application that the UK office has rejected under its own treatment of software patentability."

The IPO plans to contest the ruling at the Court of Appeal, on the grounds that the judge did not follow procedures created following a benchmark case in 2006.