Watermark
| Recent UK Developments in the Patentability of Software Implemented Inventions |
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11 March 2008 In late 2006, the UK Court of Appeal issued a joint judgment in relation to the matters of Aerotel and Macrossan concerning the interpretation of s. 1(2) of the UK Patents Act. A new four-step test to considering the patentability of inventions involving computer software was approved by the Court. The UK IPO interpretation of Aerotel/Macrossan has lead to a significant number of objections under s. 1(2) being raised against applications and, in most cases, the UK IPO has refused to allow claims to a computer program which implemented a patentable method or apparatus. The UK High Court has recently revisited the UK IPO’s implementation of Aerotel/Macrossan in two cases: Astron Clinica Ltd & Ors v The Comptroller General of Patents [2008] EWHC 85 and Autonomy Corporation Ltd v The Comptroller General of Patents [2008] EWHC 146. In the Astron Clinica decision it appeared as though the UKIPO and EPO approaches to treatment of computer software were beginning to converge. However, in the more recent decision in the Autonomy case, the judge held that “the mere fact that a computer program reduces the load on the processor or makes economical use of the computer’s memory or makes more efficient use of the computer’s resources does not amount to making a better computer, and does not take it outside the category of computer program as such”. By contrast, technical consequences or improvements such as these form the very basis of patentable subject matter before the EPO. These recent UK judgments recognise the undesirable consequences of divergence between the UK law and EPO law regarding software implemented inventions, and reinforce the proposition of forum shopping given that the EPO is more likely to grant such software related patent applications. Nick Stamatiou |