| Thanks for the response and attempt to answer my question.
Yes there does
still seem to be scope for inclusion but
at least the system starts out with
the general principle
that computer programs are unpatentable and belong in
the
domain of human inventions that do not, in themselves,
contribute
technical innovation.
ie A program is just data - it becomes useful by a
pre-existing programmable computer recognising it as a set
of
instructions
and executing or calculating them. Other input
data and resultant output
manipulated by respective input
and output devices makes the whole system
useful (digitally
imprinting/coding human knowledge into a device which can
mimic mathematical/logical processing of it). The working
system might
or
might not represent a "technical contribution" as a
matter of judgement which
is
where the grey areas and confusion can return - hence:
In
Symbian Ltd’s Application [2008] EWCA Civ
1066, [2009] RPC 1 (“Symbian”), the
Court of Appeal held
that the contribution made by the invention was not a
computer program “as such” because “it has the knock-on
effect of the computer
working
better as a matter of practical reality”. This judgment
(especially
paragraphs 54-56) provides
an insight into what can be considered to constitute
a
“technical contribution” (a test which
dates back to the EPO Board of Appeal
decision in
Vicom/Computer-related invention [1987]
1 OJEPO 14 (T208/84)); in
other words a contribution which
is more than solely a computer
program. An
important factor is what the program does as a
matter of practical reality.
An
invention which either solves a technical problem external
to the computer
or solves a
technical problem within the computer does not fall under
the
computer program exclusion.
Symbian shows that improving the operation of a
computer by
solving a problem arising
from the way the computer was programmed
(in that case a
tendency to crash due to
conflicting library program calls) can
be regarded as
solving a technical problem within the
computer if it leads to a
more reliable computer. Thus, a
program that results in a computer
running
faster or more reliably may be considered to provide
a technical contribution
even if
the invention solely addresses a problem in the programming.
The Court
of Appeal considered that such a technical
contribution rendered the claim
patentable.
The secondary tests help but some of us might find
them
still problematic:
Further guidance as to what constitutes a
“technical contribution” can be found in the decision of
Lewison J in AT&T
Knowledge Ventures’ Application and CVON
Innovations Ltd’s Application [2009]
FSR 19 (“AT&T”). In his
decision the Judge considered the previous case law
on the
subject of computer programs and set out five signposts that
he
considered indicated that a program made a relevant
technical contribution that
would overcome an excluded
matter objection. The five signposts are:-
i)
whether the claimed technical effect has a technical
effect on a process which
is
carried on outside the computer;
ii) whether the claimed technical effect
operates at the
level of the architecture of the computer; that is to say
whether the effect is produced irrespective of the data
being
processed or the
applications being run;
iii) whether the claimed technical effect results in
the
computer being made to
operate in a new way;
iv) whether there is an
increase in the speed or
reliability
of the computer;
v) whether the
perceived problem is overcome by the
claimed
invention as opposed
to merely
being circumvented. There is a high
degree of self-referential talk
in terms of the computer as
a system - begging the question about what a
technical
effect is. I understand the desire for these signposts as
most would
agree that, as we can have programs that work on
programs (as data) and produce
technical contributions to
the system as a system and, therefore,
incrementally(?
rather than
optimising?) improves a device's technical
performance, or
even allows it to function.[ Reply to This | Parent | # ]
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