UK Patent Office Clarifies Patentability Of Computer Programs And Business Methods
Following the recent Court of Appeal judgment in the case of Aerotel v Telco,
the UK Patent Office on Friday issued a Practice Notice on how it will in future
decide if an invention is not patentable because it is a computer program or business
method.
The Notice noted that the judgment considered all the previous caselaw from
the UK courts and the European Patent Office, and provided a clear approach
as to how computer program and business method questions should be tackled.
The judgment is binding on the High Court and the Patent Office, and from now
on the Patent Office will follow rules as set out in the Practice Notice. The test approved by the Court comprised the following steps for ascertaining
the patentability of computer programs and business methods: The Court decided that the new approach provided a structured and more helpful
way of applying the statutory test for assessing patentability which was consistent
with previous decisions of the Court. This test will be applied by examiners
with immediate effect. In a statement, the Patent Office announced that: "It is the Office’s view that the change in approach does not fundamentally
change the boundary between what is and is not patentable in the UK although
we recognise that there will inevitably be the odd case right on the boundary
that may be decided differently under different tests. To illustrate this, the
Office is issuing separately an assessment of how a sample of applications that
were refused by hearing officers earlier this year would have fared under the
Aerotel/Macrossan approach." "Furthermore, whilst that approach is different from the one currently
adopted in the EPO (as exemplified by the Board of Appeal decision in Hitachi
T 0258/03 we consider that the end result will be the same in nearly every case
irrespective of whether the approach followed is the Court of Appeal’s
or that of the EPO. The Court suggested that the issue was one which might benefit
from a reference to the Enlarged Board of Appeal." .
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