Court of Appeal Accepts Software is Patentable

13th October 2008

The Court of Appeal has refused to accept the UK Intellectual Property Office's rejection of a patent for a piece of software in a move which experts say will open the door for more software patents in the UK.

Symbian has won the right to patent a piece of software which makes other software run more quickly. The Court of Appeal rejected the UK Intellectual Property Office (UK-IPO)'s objections to the application.

The software in question was granted a patent by the European Patent Office (EPO), but the UK-IPO rejected an application to make that patent active in the UK.

The High Court had previously backed Symbian's case, and the Court of Appeal has reaffirmed that decision.

UK law has said that an invention that consists solely of software is not eligible for a patent, but what exactly this means has long been a contentious issue. Software patents are more commonly awarded by the EPO and are very common in the US.

Lord Neuberger of Abbotsbury gave the Court's decision, and said that it was desirable as far as possible to read the law so that the UK-IPO and the EPO came to similar decisions.

Symbian's software produced an effect on other pieces of technology, the Court of Appeal said, and it was this which made it eligible for a patent.

"A computer with this program operates better than a similar prior art computer," said the ruling. "To say 'oh but that is only because it is a better program – the computer itself is unchanged' gives no credit to the practical reality of what is achieved by the program. As a matter of such reality there is more than just a 'better program', there is a faster and more reliable computer."

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