Eddie Powell explains the differences between the various types of IP protection and comments on recent court decisions which impact on the extent to which software developers can get patent protection from their products.
Principia:
Believe it or not the subject of patents for computer software is a very hot topic at the moment. In October 2006 the Court of Appeal (the second highest court in the country) commented on the varying approaches of the UK and European Patent Offices in dealing with applications to patent computer software.
So what is the fuss about? Should you be trying to patent your computer products?
Getting a patent
Patents are not international. Each country runs its own patent system and a patent that has been granted applies only to the relevant state concerned. There are some tweaks to this rule. Firstly, under the European Patent Convention system, an application for a European patent can be made to a central office in Munich, which will take the application through to grant. At the point of grant of the patent, however, the European patent application is converted into individual patents in the specified scheme countries (some of which require translations to be prepared). Secondly, an international patent treaty system allows one application to be filed in Switzerland which will get a preliminary review on a central basis, but if the application is taken further, it is then converted into an international application with the designated relevant national patent registries. All this gets very expensive.
For this reason patent law is not uniform throughout the world and there is considerable inconsistency in terms of what can be protected and the level of protection given.
However, essentially a patent usually has to fall within the following criteria in order to have a hope of getting protection:
1. Novelty
It has to be an invention which is new. Simply put, the thing which is the subject of a patent must never have been done before. If there is any record of anyone doing the same thing (whether or not they patented it) then the invention will not be taken as new.
2. Inventive steps/obviousness
Looking at material that exists on the date the application is filed, the next stage is to assess whether what is sought to be protected is simply the obvious next step in the technology which any skilled person would identify. If this is the case, then again patent protection will be denied.
3. Industrial application
The invention must actually be capable of industrial application - it must be an invention which will actually work!
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