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By | Kelly Fiveash 28th January 2008 16:36

High Court approves software patents

Opens up playing field/can of worms

Technology firms will be able to patent software programs following a High Court decision on Friday that could see the UK having closer ties with Europe when it comes to the handling of computer-related inventions.

The Honourable Mr Justice Kitchin ruled in a case brought by five small UK businesses that the Intellectual Property Office (IPO) was wrongly applying the law by automatically discarding claims for computer programs.

Astron Clinica Limited and others appealed in May last year against the IPO in the hope of securing patents, and therefore a "monopoly", on technologies which included bit masks used with laser printers to improve image quality and semi-conductor chip design.

All of the products noted in the ruling were distributed on computer discs or made available by download over the web.

Kitchin rejected the IPO's position which said in November 2006, following a landmark case brought by Aussie inventor Neal Macrossan, that computer program inventions were usually not patentable.

If it can be shown that programs running on a computer bring about a further technical effect, then the firms responsible for that technology should have their patent claims considered, said Kitchin.

Up to now, small tech businesses based in the UK that wanted to patent computer-related inventions have looked to the European Patent Office (EPO) for intellectual property protection.

The decision could open up the playing field for small UK businesses looking for a leg-up in the software industry where the likes of Microsoft, Oracle and IBM hold a considerable monopoly.

Explaining the rationale behind his judgement (pdf courtesy of, Kitchin said that previously British tech firms could only protect their inventions by invoking the contributory infringement provisions of section 60(2) of the 1977 Patents Act.

"What is worse, those provisions give no protection against the production and sale of programs in the United Kingdom if they are intended for use abroad," he added.

Deputy IPO director Andy Bartlett told The Register that the office was "in the process of considering an appeal" against the latest ruling. ®

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