AJPark

The Commerce select committee report on the Patents Bill, released yesterday, means that computer programs will not be patentable.  

The select committee has added a clause that says, “a computer program is not a patentable invention”.  This indicates the select committee accepted the submissions made by those who are opposed to granting patents for software inventions. 

The submitters’ arguments are highly contestable.  They believe that software patents are inconsistent with the open source model.  However, this is only relevant if the model is proven to be best and that all software developers should use it.  There is no such evidence.  Developers who use the proprietary model should be free to do so unless there is proven economic harm.

No inventive step in software development

The committee accepted there was no inventive step in software development.  But the invention of a ‘Windows-style’ display for computer screens, among many other computer developments, was clearly as inventive as many mechanical and chemical inventions which have been patented.

According to the report, software cannot be inventive because it builds on existing software.  However, all technological developments, in whatever field, build on technology which has gone before.

The committee noted that software patents can stifle innovation and competition, although why only software patents have this effect is not explained in the report.

Software patents for trivial or existing techniques

The report oddly accepts the argument [however, recommends] that software patents can be granted for trivial or existing techniques. 

The requirements for the patentability of software inventions is the same as for any other inventions.  There is no lower standard and, indeed, one of the main advances in the Bill is to make it more difficult to obtain patents for trivial inventions by adding the requirement that examiners must examine patent applications for inventive step, as well as for novelty.

Embedded software inventions

It seems the committee would have preferred not to exclude patents for embedded software inventions (software for controlling lifts, washing machines, cars etc) and looked at US and UK legislation to see if this was practicable, but astoundingly did not find this helpful. 

The US allows patents for all types of software inventions and the distinction is irrelevant, but the UK, following the European Patent Convention, does draw a distinction and only excludes from patentable subject matter computer programs “as such”.  This wording was specifically to allow patents for embedded software.

The committee seems to have been advised that the exclusion of all computer programs from patentability may still allow embedded software to be patented with suitable guidelines for the patent examiners.  Unfortunately, this has proved not to be the case in other countries which have a similar exclusion, such as Brazil.

Finally, we note that the committee’s amendment will mean a divergence from the patent law of our neighbour, Australia, despite a treaty for the harmonisation of business law between our two countries.

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  Ken Moon

  Consultant