Tuesday, 29 November 2011

Computer simulations patentable

In Re Halliburton Energy Services Inc [2011] EWHC 2508 (Pat) (05 October 2011)  the Patents Court (HHJ Birss QC) held that computer simulations of designs are not just mental acts (and therefore unpatentable). The IPO had wrongly applied patent law when it assessed four applications for patents for computer simulations of designs for the working of drill bits for the oil industry. The IPO had wrongly asked whether the inventions were capable of being performed mentally: the right question was whether they were in fact merely performed mentally. This had caused the IPO to fail to recognise that the claims were make only in relation to the simulations themselves and were therefore not subject to the exclusion for mental acts. The examiner had applied the exclusion on too broad a basis.
“The claimed invention cannot be performed by purely mental means and that is the end of the matter. Put another way, the contribution is a computer implemented method and as such cannot fall within the mental act exclusion.”
The judge said that the inventions were not subject to any of the other exceptions to patentability. They merged mathematical calculations with computer software and were sufficiently technical to be patentable. The invention was more than just a computer program: it was a method of designing a drill bit, and it did not fall solely within the excluded territory.
The problem with the application had been that it was very broad. It did not not tether the claims to simulations on a computer, or to actually manufacturing improved drill bits, but this was deliberate as the draftsman wanted to catch such matters as consultants designing drill bits as well as bits which had been manufactured. However, the skilled reader of the patent would understand that the simulations would be carried out using a computer, so the complicated wording might have been unnecessary.
As for the mental act exclusion, this is very narrow and covers only calculations which are actually performed mentally. It does not catch calculations carried out using a computer.

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