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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, September 24, 2005New UK Case Law on the Patentability of CII.I just stumbled across an interesting posting of Mr.John Lambert in his blog nipc IP/it Update. Apparently, the UK Patent Office has rejected a Patent Application No. GB 0204357.8 which had been filed on February 25th, 2002, in the name of Oracle Corporation. The application is entitled "Mark-up language conversion". It was published on August 27, 2003, with the serial number GB 2385686 A. Claim 1, as amended, reads as follows:"1. A method of converting text written in a first mark-up language and comprising a document file and a document type definition (DTD) file, to a second mark-up language which does not utilize a DTD file, the method comprising operating a processor to carry out the following steps:Surely there is some room for controversies as to whether or not such claim should be considered allowable. But a statement given by the Hearing Officer, Mr. Stephen Probert, really strikes: "[...] If 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 present 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. I therefore conclude that the advance in the art that is said to be new and not obvious, is not 'new-and-notobvious' under the description 'an invention' in the sense of Article 52. [...]"Nobody should forget that nothing else than an invention can be patented. If there is a real invention it does do no harm to the patentability if software is used in one or more embodiments of the invention. Neither does that fact that a patent on a technical invention might in some cases interfere with the creation and distribution of software; this effect is not based on any patenting of software as such. There is no such thing in Patent Law like a feed-back from the infringement side of a patent, i.e., the legal effects of a granted patent on software markets, to the patentable subject-matter side, i.e., whether or not a certain invention should be considered patentable. The judgement would have been much clearer if Mr. Probert would have confined his grounds more conventionally on the issue as to whether or not the subject matter of the claims in question convey a technical invention which is new, inventive, and industrially applicable in the sense of the Patent Law. I guess that Mr. Probert's thinking will not survive further supreme Case Law to come. Again this a vivid illustration of the profound confusion in Patent Law which was to be rectified by the now failed EU Directive on the patentability of computer-implemented inventions.
I just attended a Hearing at which Stephen Probert was the Hearing Officer, and we talked about this issue of "foreclosing computer programs to the public" at some length. I hadn't seen his earlier Oracle decision before attending the Hearing, so his hard line (and it IS a hard line) against computer programs caught me a little bit by surprise. I don't know if my arguments persuaded him, but to me it appears that he is overlooking those two important words "as such" - without which not a single computer program patent could ever have been granted. The CFPH judgement says that 'computer programs "as such" should not be foreclosed to the public', not that 'computer programs, full stop, should not be foreclosed to the public'. In saying this, the CFPH judgement is doing nothing more than turning the requirements of the UK Patents Act or Art 52 of the EPC around to explain what the direct end result is of making "computer programs as such" un-patentable. Mr Probert needs to be careful in future not to hang too much of his decision on a statement that does nothing more than express the law in a slightly different way.  Post a Comment
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