A date has been set for a hearing in the High Court to determine the legality of a patent office review of the level of protection it offers to software patents in the UK. On November 19, the High Court will hear four small UK companies argue that the patent office's refusal to accept patent claims covering disks and downloads is "absurd" and puts the UK in conflict with European patent law.
This is a (very) fine point in patent law, so we'll refresh your memories with the technical details.
A patent contains (at least) two parts: the description, and the claims. The description must contain enough detail for another person to replicate whatever is being patented. The claims, meanwhile, determine the scope of the monopoly: i.e., what it is you can stop people from doing.
A patent office spokesman offered the following example in May this year: You have applied to patent a washing machine, which is controlled by software. You are effectively asking to patent two things - the washing machine, and the software that controls it.
Under the new guidelines, the patent office says that while you have a monopoly on the washing machine, you do not have a monopoly on the distribution of the code.
That means other people can distribute or sell copies of the software, provided they are not knowingly aiding another person in the infringement of your main patent. (This would count as secondary infringement, is considered distinctly anti-social, and is likely to attract the attention of your local constabulary.)
"A lot of people think there is no problem here because disks and downloads are protected by copyright," noted Nicholas Fox of Beresford & Co, the lawyer working for the four firms. "That is just not true. Copyright protection only protects code against copying. In contrast, patent protection enables a company to monopolise an invention even if competitors independently come up with the same idea."
The companies argue that the rules are now inconsistent, and are forcing firms to apply for European patents, rather than UK patents. This is an impediment to British industry, the firms say, and puts firms at a disadvantage.
The four firms are Astron Clinica Limited, Software 2000 Limited, Surf Kitchen Inc and Cyan Holdings Plc. In May this year another company, InRotis Technologies, formed part of the complaint. It is not clear why the firm has opted not to continue the action. ®