RE: Patent Law7 Oct 2022 00:37
Software and Business Method Inventions in the UK.
Statutory law in the UK regarding the patentability of software and business method inventions is essentially the same as it is in Europe. However, unlike the EPO, the UKIPO applies this law in practice by assessing whether a claimed invention relates to non-patentable subject matter independently from its assessment of whether the claimed invention is obvious[6].
Essentially, in order to obtain patent protection for a software or business method invention in the UK, it is necessary to show that the claimed invention provides a “relevant technical effect”. Although a formal definition of what constitutes a relevant technical effect has not been (and is unlikely to be) provided, the UK High Court has set out the following factors as being “useful signposts” for determining whether a claimed technical effect is a relevant technical effect[7]:
i) whether the claimed technical effect has a technical effect on a process which is carried on outside the computer;
ii) whether the claimed technical effect operates at the level of the architecture of the computer; that is to say whether the effect is produced irrespective of the data being processed or the applications being run;
iii) whether the claimed technical effect results in the computer being made to operate in a new way;
iv) whether the computer is made a computer a better computer in the sense of running more efficiently and effectively as a computer;
v) whether the perceived problem is overcome by the claimed invention as opposed to merely being circumvented.
In theory, the approach of the UKIPO concerning the patentability of software and business method inventions should produce the same result as the approach of the EPO, and the UK courts have indicated that both approaches ought to produce the same result[8]. However, in practice, the UKIPO appears to take a much narrower view of what can be considered as “technical” compared with the EPO. The unfortunate effect of this is that the prospects of getting granted patents for software inventions at the UKIPO appear to be considerably worse than at the EPO[9].
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