To followup on Stegu's post, from the UK Patents Act 1977 (page
8):
(2) It is hereby declared that the following (among other
things) are not inventions for the purposes of this Act, that is to say,
anything which consists of -
(a) a discovery, scientific theory or
mathematical method;
(b) a literary, dramatic, musical or artistic work or
any other aesthetic creation whatsoever;
(c) a scheme, rule or method for
performing a mental act, playing a game or doing business, or a program for a
computer;
(d) the presentation of information;
but the foregoing provision
shall prevent anything from being treated as an invention for the purposes of
this Act only to the extent that a patent or application for a patent relates to
that thing as such.
From HTC Europe v
Apple, the '948 patent:
21. 948 is entitled "Touch event
model". It has a priority date of 4th March 2008. In broad terms it is concerned
with computer devices with inputs which are multi-touch enabled, that is to say
they are capable of responding to more than one touch at the same time.
94.
It is clear that one part of the contribution of the 948 patent lies in the
software which processes the multi-touch input. This is plainly excluded subject
matter. The contribution also includes the advantage that it makes it easier to
write software for the device. I consider that this contribution also lies
wholly within excluded subject matter. The writing of programs for computers
seems to me fall squarely within the exclusion of computer programs as
such.
95. I turn therefore to Mr Burkill's approach, which is to consider
whether there is a relevant technical effect. As to the first of his points, I
do not think that ease of writing application software can be a relevant
technical effect outside the computer. I accept Mr Tappin's submission that, in
the context of the computer program exclusion, ease of writing computer programs
cannot be a relevant technical contribution or effect. The writing of computer
programs is excluded subject matter. Making it easier for one part of the
software to be written is merely a re-distribution of the labour of writing the
software. For completeness I would add that the structure of the software does
not have any real world effect on the way the device performs. It was common
ground that one could not tell whether or not any given device was using the
invention.
96. The second point, that the method applies at the operating
system level is correct. But not every method which operates at this level will
be patentable. This signpost derives from the first of the IBM cases T 0006/83
referred to by Lewison J at [21], a case concerned with a network of computers.
At [6] the Board referred to "features … not concerned with the nature of the
data and the way in which the particular application program operates on them"
as being patentable. In my judgment the invention of 948 is precisely concerned
with the way in which the software operates on the data, namely the touch
events.
97. The third point, that the claimed technical effect results in
the computer working in a new way, by presenting a new API to the developer in
which touch events are sent selectively, is not correct. The computer is not
working in a new way in any relevant sense. There is merely a redistribution of
the data processing within the device.
98. Next, there is no evidence of an
increase of speed or reliability of the computer. Finally, I do not regard the
last point as persuasive in a case where the problem solved is entirely within
the computer.
99. I conclude that the invention, at least as claimed in
claims 1 and 2, is not patentable because it is a computer program as such.
The '022 patent:
100. The 022 patent is entitled
"Unlocking a device by performing gestures on an unlock image".
241. I
think Professor Keyson was reading far too much into the contribution of 022.
Nevertheless, I think there was a contribution here which went beyond a computer
program as such or the mere presentation of information. There is a sense in
which the invention provides a technical effect outside the computer, namely an
improved switch. Moreover this is a real world effect which is not limited to
the presentation of information. Whilst the subject matter of the invention is
obvious, the patent is not invalid for excluded subject matter.
The '868 patent:
242. The 868 patent is entitled
"Portable electronic device for photo management".
280. HTC submit that, as
with 022, the invention provides no more than a way of informing the user that
he has reached the edge of an image. I think there is more to the invention than
that. As I have construed the patent it provides a novel method of manipulating
a zoomed image involving gestures having different effects. I think that the
method cannot properly be described as a computer program as such, or the
presentation of information as such.
The '859
patent:
281. 859 is entitled "Portable radio communication
apparatus using different alphabets".
358. I have construed the claims above.
HTC submit that the contribution lies in the particular way in which the
characters have to be stored in memory in order to fall within the claims. This
brings with it a benefit in terms of flexibility in adding languages. They
further submit that a particular arrangement of data storage in memory falls
squarely within excluded subject matter. Moreover the contribution has no real
world effect - Dr Brydon confirmed that the user experience is unaffected by
whether or not the characters for a particular language use shared common
characters or have their own separate set of characters.
359. I think these
submissions understate the contribution of 859. Hagenuk does not disclose an SMS
messaging capability. That produces an effect outside the computer, and is
enough to take the invention outside the exclusion. 859 is not invalid on this
ground.
Whilst these 4 patents died in this case, where HTC
initially sought revocation of 3 Apple patents and Apple countersued for
infringement of the three then the fourth, they died because they were either
not infringed, were obvious or were anticipated. Confusingly, only the '948 was
invalid because it was excluded subject matter. The others were valid subject
matter.
There's also the Re
Halliburton which I've mentioned previously.
IANAL but I believe that the NZ text is
sufficiently close enough to the UK text with the "as such" provision that I
would believe that within a short time software patents would be allowed.
j
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