Wednesday, 4 March 2009

Software patents in the High Court - again ...

Lewison J's judgment dated yesterday in AT&T Knowledge Ventures LP, Re [2009] EWHC 343 (Pat) is on BAILII today, although the IPKat had it earlier. It's not an earth-shattering case: neither appeal succeeded, and the judge had plenty of guidance from the Court of Appeal in Aerotel v. Telco; Macrossan's Application [2007] RPC 7 ("Aerotel") and in Symbian Ltd v Comptroller-General of Patents [2009] RPC 1. But he did have to consider the practicalities of applying the four-step test of Aerotel and noted that it was not possible to put patentability and novelty in separate, atertight compartments: "...asking what the inventor has added to human knowledge necessarily means that the questioner has some notion of the state of the art."

He also noted that the question of when a contribution is technical (within the meaning of the Aerotel tests) is not clear. Indeed, it's the crux of the whole matter of software patents. How can you tell whethere the contribution an invention is making is a technical contribution if you don't know what "tehnical" means in this context?

It seems to me that one important difference between teh modern approach and what went before is that we now seem to be worried about what the technical effect is, rather than trying to locate where it is to be found. My simplistic approach to software patentability (as expressed in many lectures and training courses, where time did not permit of a more sophisticated analysis even if I had been able to offer one) is that while a program is not patentable, a computer controlled by a program so as to do something new and inventive will be. It's a matter of identifying the technical effect and seeing whether it is in the program or the computer when it runs the program; and it therefore comes down to how the applicant presents it in the patent application.

The courts have been saying recently that it's not just a matter of presentation, but they seem to have proceeded to analyse the problems they are faced with very much in presentational terms, so I am none the wiser (nor necessarily better informed). But now it seems that we need to know a lot more than we used to about the nature of the effect, and whether it really is a technical one. But the new approach still requires (as Lewison J said) the courts to disregard any technical effect that is found solely in the excluded matter - the computer program.

This remains, to my mind, a fascinating area where law and technology come into contact - forceful contact - with each other. One day, we might have it educed to a single set of agreed principlees and I might be able to understand it.

No comments:


blogger templates | Make Money Online