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Can Software be Patented in the UK?

In the latest development in a long running saga, the High Court has ruled that in some circumstances it is possible to apply and be granted a patent for software.

Developments in the IT sector have lead to an blurring of the distinction between software and hardware with as software systems become increasingly integrated into the hardware. Even relatively innocuous items such as kitchen toasters often include microchip technology and operating software. Even software not directly tied to specific hardware can now be so complicated as, arguably, to have direct technological effect.

However, the relevant European directive, and the Patent Act 1977 (as amended) which deals with patent law in the UK, expressly excluded ‘a program for a computer’ from being patentable.

Certain other jurisdictions, including the united Stated of America, do not make this distinction.


Why is this important?

The fear of the UK software industry is that it is being prejudiced by this as patent registration offers the registered proprietor many broader protections than copyright. Copyright only protects against copying. Patent registration goes further and prevents the independent creation of the same process. Thus if a computer program is patented, the registered proprietor may enforce its rights against the independent developer who innocently recreates the same process in its own program. Arguments can still be raised as to whether the same process is involved or if the new program is sufficiently innovative, but this is little comfort to the small developer who cannot afford litigation.

This has lead to much debate among IP practitioners and recent legal challenges as to the meaning of the term ‘programs for computers’ as such, and attempts to develop a distinction to permit patent registration for more sophisticated software which ought to enjoy patent protection.

In the recent case of Halliburton Energy Services Inc v Smith International (North Sea) Limited the High Court has confirmed that software which is more than a mere computer program but results in some specific technological effect could, if it satisfies other requirements for patent registration, be capable of patent protection. However, on the facts of that case the application failed. This decision endorses a series of recent cases which have held that there is scope, albeit limited, for software to be patentable.

It is important to remember that a computer program lacking this special character of technological effect remain ineligible for patent registration.

There is little doubt that this will continue to be a much debated and developing issue for the UK courts and software developers.


For further information on this or other aspects of intellectual property law, please contact Austin Blackburn ablackburn@nash.co.uk, an associate solicitor at Nash & Co Solicitors specialising in intellectual property and business law issues.