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Those of us who thought that the UK was something of a no software patent zone following recent decisions in the courts, guidelines from the patent office and even government statements may have to think again. Yesterday the High Court ruled that current UK IPO practice to reject all patent applications relating to computer programs automatically was unlawful. As the news has just broken, there is not a great deal of analysis of what it all means. The IP Kat, however, has been quick off the ball and, as ever, is worth reading.
Like the Kat, I wonder whether this is the end of the matter. It sees to me to be a pretty important point of law that cannot rest on a High Court decision. Rather, there needs to be absolute certainty on this point and so a UKIPO appeal to the Court of Appeal should not be ruled out. There, it is quite likely that Lord Justice Jacob will get involved. As readers of this blog may recall, he was criticised last year by the president of one of the EPO’s boards of appeal for a decision in a software patent case “that was not reconcilable with European law” – in other words, the judge, certainly one of the most respected IP judges in Europe, did not know what he was talking about. The case in point was Macrossan and this formed the basis of the UKIPO policy which has now been overturned by the High Court. It’s all very confusing!
Anyway, the bottom line is that once again we find a case in which those seeking patent protection in Europe are far from certain as to where they stand. Can you obtain and then enforce software-related patents in the UK or not? Although the case decided yesterday involved patent applications to the UKIPO, there is still an issue with patents granted by the EPO. If the EPO sees the issue in one way – and it seems that it probably does – and the UK courts see them in a different way, then whatever the EPO grants makes no difference; it will not be possible to enforce the rights in the UK. And that is the case even if those exact same rights are perfectly enforceable in other parts of the EU. That makes an absolute mockery of the European single market.
Earlier this week, the Slovenian Economy Minister (remember, Slovenia now holds the presidency of the EU) made a speech to the European Parliament in which he spoke of the emphasis his country was placing on finding a way to introduce a single European patent jurisdiction; so building on the progress made during the previous Portuguese presidency. The current situation shows why such talks are necessary – a central European patent court will help bring the certainty that, in a number of areas such as software and biotechnology, we currently do not have. Maybe such a court will be very restrictive in its view of patent protection for computer programs, but that surely has to be better than the mess we have at the moment. At least everyone will then now where they stand.