UK Patent Office Approves Software Patent... Rationalizes The Decision

from the and-here-we-go... dept

Thu, May 7th 2009 6:29pm — Mike Masnick

The UK has held out against the idea of software patents for a while, but with Nokia pushing hard to get a patent on a piece of software related to the Symbian mobile operating system (which, ironically, Nokia has agreed to open source), last year a court ruled that the patent office in the UK had been too quick to dismiss the patent application, and an appeals court agreed. So, it should probably come as no surprise at all that the patent office has now granted the patent in question. What's amusing, though, is how it rationalizes the decision. Rather than just saying "uh, the courts said so," it claims that it allowed the patent because it's "more than just a software program," saying that the invention was a "technical contribution." Apparently, the new rules mean that as long as software makes a "technical contribution" it can be patented. But... uh... what software doesn't make a "technical contribution" of some sort?

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Filed Under: patents, software patents, symbian, uk
Companies: nokia

8 Comments

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ChurchHatesTucker (profile), 7 May 2009 @ 7:36pm

Well, yeah
Most of these 'decisions' are just retcons. They already know where they want to be (c.f. Lori Drew as the worst person ever) and just have to figure out a convoluted path to get there.
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Frosty840, 7 May 2009 @ 10:14pm

From what I read about the decision, the rationalisation for the decision is one of the most half-arsed I've ever heard of, i.e. that programming the phone directly instead of using a hardware-based phone emulator is a significant technical innovation. This is, in fact, a completely standard practice, now that it's technically possible to carry out. The only reason our company has ever used an emulator is because in order to reprogram a reprogrammable chip, we had to bake the thing in an ultraviolet oven for five hours. Now that hardware is available that is cheap and that can be cheaply reprogrammed, of course we reprogram our production chips instead of spending literally thousands of [local currency] on a hardware emulator. We'd be idiots not to do that. To say that using now-standard hardware is patentable "software", or even to say that such a practice constitutes "software" seems like madness of the first order to me and does nothing more than take the UK down the route of software-patent-idiocy that has been taken in the US.
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Andy, 8 May 2009 @ 12:17am

For shame!
This is really a sad thing to read. The US software patent situation is a horrible mess which clearly does more harm than good. I had always been glad that the UK did not follow this. It saddens me as a Brit that we have now started to accept these arguments. It is tragic in general that courts ever allow the heavy lobbying of businesses to affect the soundness of their decisions such as we are constantly witnessing with the DRM mob. Sad indeed. Think again Britain.
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Tor, 8 May 2009 @ 12:37am

The European Patent Convention says:

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.

The patent offices including EPO gets around this by the patent seekers phrasing the patent as covering a computer system and not the software "as such". This is of course ridiculous and it's unfortunate to see courts approving of this. Not the least since EU wide patents will be the priority of the Swedish EU presidency this autumn and we can be quite sure that many will see that as their chance to legalize software patents ("harmonize the laws" as they incorrectly describe it). Also keep in mind that the European Patent Office has already issued many thousands of software patents (according to FFII) whose legal status is very unclear. So there is much at stake for both sides.

EU wide patents might make sense out of some perspective (if patents can get rejected more easily for example), but it also makes it more cost effective for lobbyists to get their will through if the system is centralized. The question is also how politicians handling the EU wide patents would handle a clear convention that prohibits software patents in case that would unvalidate patents already granted in some countries.

By the way, last time the issue of software patents was up for a vote in the EU parliament I know of MEPs who said they didn't want to allow software patents but yet voted for software patents. They didn't properly understand what they was voting for, which is to some degree understandable considering the insidious way the text was phrased.
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J Bosson, 8 May 2009 @ 6:16am

"As such"
"As such" was intended to remove those parts of the patent that are software (as such) and not all those those other things related to software. Instead, EPO has concluded that if anything else is included then its all patentable.

Another route is using "further technical effect" that is just the same excuse to grant software patents if the problem involves something technical as a known computer.

But the biggest trick is to say that all programming is patentable since programmers optimize between space and steps, and this is a technical consideration with regards to a computer that is of course patentable.

Of course this is something that can be combined in infinite ways to construct new patents just taking different steps in organizing information. Its also something that every programmer does thousands of times in each program. Its here the lawyers get it wrong.

Software is not another technology; it is written, abstract and a matter of freedom of speech for programmers.

Patenting software is prohibiting communication in that it extends to where it is hard to separate commercial from non-commercial patent infringements in publishing. These risks work against the dissemination of innovation.

/jonas
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- angry dude, 8 May 2009 @ 6:26am
  
  Re: "As such"
  "a matter of freedom of speech for programmers."
  
  Punky
  
  why are you so f****** dumb ?
  
  Huh ?
  
  What's f****** wrong with you, techdirt imbeciles ?
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Anonymous Coward, 8 May 2009 @ 7:10am

I know
"But... uh... what software doesn't make a "technical contribution" of some sort?"

TWITTER!
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Ronald J Riley (profile), 13 May 2009 @ 10:22am

Inventions Implemented in Software Important
Mike, I really appreciated your frankness when you wrote; “But... uh... what software doesn't make a "technical contribution" of some sort?”.

Software inventions are becoming increasingly important. It would be foolish not to allow patents on inventions implemented in software.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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