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back to article Ruling makes it easier to get software patents in the UK

The Court of Appeal has refused to accept the UK Intellectual Property Office's rejection of a patent for a piece of software in a move which experts say will open the door for more software patents in the UK. Symbian has won the right to patent a piece of software which makes other software run more quickly. The Court of Appeal …

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Appeal on the basis of unlawful

It is beyond the remit of the EPO to issue patents on software and other mathematical constructs.

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obvious to one skilled in the art?

From the "pithy description" quoted at the beginning of the ruling, this "invention"

looks like a bog standard look-up table, and is a trivial application of the maxim

"all problems in computer science can be solved by adding another level of indirection".

Knowing someone who once worked at the EPO, I know their quality control is utter crap;

but how did this get past even the dumbest examiner?

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Silver badge
Joke

I hearby patent...

defrag...

Run this app and your programmes may run quicker....

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Anonymous Coward

Patent Office should reject it as software patent

Reading through his judgement, he says that they can't simply reject it because it's software. You have to consider the 'as such' clause shit.

Fair enough, it comes down as to whether the 'as such' thing applies here. It does not, it's a software patent with the 'invention' in the software. Ergo it is a patent for a program for a computer and not patentable, even considering the 'as such' clause.

http://www.bailii.org/ew/cases/EWCA/Civ/2008/1066.html

But also because it's patenting the DLL entry point system used in late loaded device drivers, like ODBC drivers which preexisted long before Nokia came along and 'invented it'.

I would seek sanctions against this, because they (Nokia) must know that that late loading of device drivers and binding by index is ALREADY done, it's right there in the computers they describe. They must have used it loads of times themselves. Nokia is deliberately misleading the patent office and judges here I reckon.

But then we're lucky we can show this, because most of the late loaded DLLs are in code protected by trade secrets and would never be released. So you can never determine prior art in a market protected by trade secrets as successfully as software is.

But lucky for us, we can and this is well covered by prior art.

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just goes to show

"there is more than just a 'better program', there is a faster and more reliable computer."

Retards should not be allowed to become judges! There is a faster and more reliable program, the computer remains the same. Someone who does not know the difference between the computer, and a program running on that computer, even if it is the OS, is not qualified to rule in a case involving technology

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"Program for a computer" exclusion is now meaningless

What possible meaning can now be ascribed to the "program for a computer" exclusion if they allow this? Arguably (and it will be so argued) any program creates a "better computer". The UK-IPO's stance on this was entirely logical and consistent with the intent of the legislation, but the CoA has just stomped all over it, apparently in the interest of "harmonisation" with the EPO.

This argument that this is good for SMEs is completely bogus: most SMEs are far more likely to get beaten into the ground by other people's software patents than have any chance of writing, filing and maintaining one of their own. Even the research to verify whether you might be tripping over something would effectively cripple any actual development.

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Happy

Seems sensible

This is a sensible decision by the Court of Appeal. For some time, the UK Patent Office has used an incorrect interpretation of the Aerotel/Macrossan decision which contradicted earlier CoA decisions. This latest decision merely returns the situation to where it was before the whole Aerotel/Macrossan mess.

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Silver badge
Flame

Say what?

"As a matter of such reality there is more than just a 'better program', there is a faster and more reliable computer."

So you can patent a program as long as it does something useful.

Programs as such are still unpatentable, but only if they are completely and utterly useless.

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re: Seems sensible

Nope, it is the correct application of the ideal that a software program is a mathematical (logical) construct only and as such, not a patentable construct but a non-patentable mathematical solution.

All those fancy words show that you're part of the problem.

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The sub-prime of technology

Quoth the Court, "To say 'oh but that is only because it is a better program – the computer itself is unchanged' gives no credit to the practical reality of what is achieved by the program. As a matter of such reality there is more than just a 'better program', there is a faster and more reliable computer."

So optimisations are patentable now, are they? You'd think with all the problems everyone seems to be having these days with the fraudulent inflation of supposedly valuable paper assets that people wouldn't want to reproduce the same scenario outside the financial sector, but I suppose that the easy money has to be made elsewhere now that the banks have been nationalised. And so the vultures (CIPA) continue their efforts to devour a sector which functions well enough without patents, defecating on everyone who has to make an honest living in this particular ecosystem.

When does everyone in the software industry get their turn to tax, punish and generally mess up the legal profession?

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Stop

Wh the hell are these SMEs?

Just who the hell are these SMEs that want software patents? As an SME, I sure as hell don't want them (copyright is good enough for me), and I have yet to meet anyone in the SME world (who hasn't already been bought out or simply dreams of making gazzillions on the promise of a patent) that has actually benefited from software patents - quite the contrary. A European SME cannot enter the US market because of the risk of infringing some submarine patent.

Shame on you Dr John Collins - greed is not an endearing feature.

And shame on Symbian - a once shining example of great British innovation (not the US definition of 'innovation') for falling down to the gutter in pursuit of your twelve pieces of silver.

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Unhappy

who is we?

<...where there may be a difference of approach or of principle, one must try to minimise the consequent differences in terms of the outcome...>

In other words, you can belong to any group, communist to nazi, as long as you do what consensus (i.e. my affiliation) demands. Is mumpits too strong a word?

What if one approach is inadequate and the other misguided?

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Happy

@greycells

If Symbian (or any other software company) didn't patent stuff it wouldn't exist anymore. Once you're a company that's worth suing, people will sue. Patents are a defensive layer to this... you sue me I'll try sue you back.

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Boffin

re: re: Seems sensible

Not sure I agree with this comment. How can a way of accessing DLLs be a "mathematical solution"? No maths in there.

I was merely referring to the fact that CoA decisions are binding but the UK patent office was not following these decisions and instead following an incorrect interpretation of the A/M decision - behaviour that is in fact illegal as CoA decisions are law. This most recent CoA decision just returns the behaviour to what it was before, or should do.

As for most of the other comments - posters seem to start of with the view that "there shouldn't be software patents" and look for reasons to support this, rather than taking a more neutral view on the issues. Patents work to protect investment by companies and copyright is clearly insufficient protection where your new and clever software-implemented invention is quite a simple one, or where a new program can be written by a competitor that does the same thing and thus avoiding copyright.

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Linux

IEFBR14

IBM did it years ago. IEFBR14 could really make your computer run quickly. It consisted of one instruction, to return control to the operating system. That is provable the fastest possible programme so any patent for accelerating programmes should be trumped by prior art.

Sheesh! We need judges who can code a line or two of software before they opine on the originality of code. We have known we can exchange storage for speed since the 1960s. We have known that we can expand loops to inline code or optimize the innermost loops or use different/faster instructions therein. There is nothing new under the sun in software, only combinations yet unused. A permutation is not an invention. Move along, please.

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@aldude

"Not sure I agree with this comment. How can a way of accessing DLLs be a "mathematical solution"? No maths in there."

There's ONLY maths in there.

Lookup the name (string comparison based on ASCII numbers, so just a whole load of "=").

Get the DLL load location (a copy: a=b)

Add the offset next to the string (a=a+c)

change the program counter to a (PC=a)

et voilla! a DLL call is executed.

Now if you know that you will need this value beforehand and you're waiting for something else, why not just do the maths and store it (another copy option).

How did you think it did this? Magical Address Fairies?

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@Anonymous Coward

"Patents are a defensive layer to this... you sue me I'll try sue you back."

AND

a) Keep out of this because you're not in the gang

b) You're a patent troll and don't have anything using patents produced? I'm Boned

c) I'm a patent lawyer and so pay me to protect you!!!

d) SME's NEED software patents. If SW patents like this were not available, how could Symbian be sued for using a software patent?

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Coat

Re: IEFBR14

Nope - it contains TWO instructions. Clearly you ran out of stamina whilst disassembling it.

Mine's the one with the "S/360 yellow card" in the pocket.

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Flame

nothing is patentable, because everything comes back to maths.

geometry of a new fangled mechanism? (cough dysons big yellow ball cough)

chemistry of a gene targeing drug?

if the patent in question is a *new* optimisation technique that pushes the state of the art, then it should be allowed to be patented. If it is as others have said and is just dll injection by another name, then no. If however, it mereley uses dll injection as part of a larger mechanism, then maybe.

@ "permutation is not invention"

permutation of cogs and gears = difference engine not an invention

permutation of GACT = dna = genetic engineering not an invention

permutaion of filament/coatings = edisons light bulb not an invention

This issue i have with software patents as seen in the us, is that many of them fail the non obvious test. One click ordering? Automatically filling in forms?

Just because an invention is contained within a computer program, it does not mean it should be automatically denied a patent.

See also:

that bloke who uses genetic algorythms to find new (cheaper) ways of building complex circuits... and then patents them. Quite rightly. What the hell are genetic algorythms if not a form of permutaion?

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Gates Horns

@Anonymous Coward

What a pile of tosh: 'My dad's bigger than your dad..." How mature our industry is.

Why not work together to build stuff that is greater than the sum of the parts - make a good living on the way and still have fun? Oh yes, I forgot: "Me, me me, it's mine, all mine and I won't share"

Even though you've stood on the shoulders of giants to get there, you're morally bankrupt enough to stamp on the toes of anyone trying to do the same. What an perverse moral compass you have...

Oh, by the way, Symbian doesn't really exist anymore as a viable company with a viable product.

Defensive patents my arse.

Bill (and Steve), because they epitomize this pathetic attitude.

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Stop

Bollocks, Glen

There's the problems of solving backlash or finding the right ratios to give the minimum resistive torque (making the gears less efficient).

These aren't maths. We use maths to guess what the world will do, but there's no giant calculator in the sky doing the sums, the universe is busy being the universe.

You're talking bollocks.

permutation of GACT = dna = genetic engineering not an invention

CORRECT.

permutaion of filament/coatings = edisons light bulb not an invention

If it were just that. BUT IT ISN'T. The bit that ISN'T "put a filament in the glass and put a large current through it" is patentable. How do you PRODUCE the bulb and evacuate it without it letting air back in when you seal it (whilst letting the electric get inside) is patentable.

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re: re: Seems sensible

"As for most of the other comments - posters seem to start of with the view that "there shouldn't be software patents" and look for reasons to support this, rather than taking a more neutral view on the issues."

There is no natural law which states that people should be entitled to a monopoly on an idea or a discovery. You are working from the assumption that a particular regulatory construct, devised for engineering endeavours, is normal, universal and desirable. So let's see you start from a neutral position. (And you should read Mark's distinction between patenting things and the processes which achieve the production of such things.)

"Patents work to protect investment by companies and copyright is clearly insufficient protection where your new and clever software-implemented invention is quite a simple one, or where a new program can be written by a competitor that does the same thing and thus avoiding copyright."

In the former case, has it not occurred to you that it would be dishonest at best to award someone a monopoly for a "new and clever" idea that is at the same time "a simple one", even if you thought ideas should be patentable? You can always claim that something was obvious and yet no-one had thought about it before - the usual "flash of inspiration" or "outside the box thinking" stuff that the lazier members of the press write up next to a picture of The Great British Inventor just before he offshores his empire to a conveniently under-regulated workplace - but I imagine that you underestimate the contribution of the knowledge, typically freely available, which led the "inventor" to their idea.

In the latter case, copyright is adequate enough to prevent people reimplementing an existing work since it is not only used to protect a concrete expression of work (rather than some hand-waving, "we own this sort of thing" nonsense), but the actual consumption of the work by the infringing party is something you can point a finger at, whereas patent infringements typically involve someone seeing someone else doing something similar to what they have written in a patent application, and then decide that they can't tolerate someone "on their patch".

The whole business of monopolies on ideas and algorithms is totally unethical because it effectively allows speculators to add their thin layer of icing on top of a substantial mathematical cake and then claim that they own the cake. And in practice it seems like an effective way of forming cartels and, in contradiction of the "plucky little start-up" myth, shutting out new competition. If anything, patents allow large companies to consolidate their market position.

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Pirate

Software IS a machine

Software is mechanical in my opinion and is therefore patentable. However these are patents on ideas, which is basically thought. So if I think of something and take a lot of time working it out, I am not allowed to take advantage of my efforts without paying some other b@stard who stuck a flag in his idea and say he owns it.

Worse than that, it basically puts the big companies in charge of all thought since I can't afford the tax on thought.

I writing a program or solving any problem I have to think about stuff. Now I have to pay a fee!

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Anonymous Coward

Well here it goes this spells

the begining of the patent bubble bursting.

There is no way to make a program run faster that hasn't already been thought about, and implemented. That's just the nature of that particular beast.

Software is not mechanical, it is literal, just a series of instructions there is no engineering just a sequence of commands, there is no way to round the edge or enlarge the item without it being ridiculous.

Nah, patents will be rejected in an effort to get us out of this economic recession, and stimulate the economy, you buy an item for more reasons that just the design, and there is a lot to be said for first to market anyhow, so people will just be more secretive, but competition will have to be allowed to keep the wheels of the economy going.

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