Wednesday, March 19, 2008

Symbian ruling will be appealed

The latest software patent UK High Court case, Symbian Ltd v Comptroller General Of Patents [2008] EWHC 518 (Pat), has continued following the line set by Astron Clinica. The case exemplifies the split between UK-IPO and EPO practice on software patents, as the EPO awarded the patent, while the UK-IPO did not. At the heart of the question is the issue of whether or not software as such can be subject to patentability.

Symbian's claim protects DLL indexing in a computer. I may be entirely wrong here, but where is the innovation in that? Anyway, the High Court ruled in Symbian in favour of the "inventor". The good news is that the UK-IPO has declared that it will appeal the ruling, as it is clear that the judge did not follow the Aerotel/Macrossan test. However, while I welcome the appeal, I feel like this may be too little too late, as the EPO keeps awarding preposterously bad software patents. While English courts have sometimes been standing in the way of EPO practice, the problem will not be solved until the EPO Board of Appeals starts interpreting art. 52 of the European Patent Convention differently.

The EPO is under a lot of commercial pressure from American software companies to harmonise practice across the Atlantic.


Anonymous said...

hi andres!

what i find amazing (or absurd, as you might prefer) is that, on the one hand, the US courts are now starting to show concerns over the issues related to software & business method patents (e.g. the e-Bay decision on injunction, the KSR v Teleflex on obviousness &, more recently, Bilski, on patentable subject matters). the EPO, on the other hand, is increasingly relaxing the requirements for software patentability...shouldn´t the EPO learn from the bad US experience of accepting software & business method patents irrestrictevely and try to narrow the scope and number of issued patents in those fields instead of increasinly give them away?

Andres Guadamuz said...

Excellent point!

My guess is that the EPO is suffering from chronic cronyism, as I hear Munich is filled with patent attorneys.