Computer Program Can be Patented - Court of Appeal Rules

The Court of Appeal has now heard the appeal in Symbian Ltd. v Comptroller of Patents, which deals with the question of whether or not a computer program can be patented under the European Patent Convention 1973 (EPC).

Symbian had applied for a patent for a computer program it had written and the application had been refused by the Comptroller General of Patents. The patent was for a novel way of accessing a dynamic link library (.dll) file in a computing device. These files are used to store common functions that are used in a number of different programs. When they are modified, they can become incompatible with some of the programs which use them and the patent concerned a way of overcoming this problem. This in turn would make a variety of devices work more quickly and reliably.

Symbian argued that a program which provided a technical solution to a technical problem was capable of being patented. The Comptroller General of Patents argued that patent law prohibited the granting of a patent on any program, unless the program had a novel effect outside the computer.

The Court of Appeal decided that a staged approach had to be taken to decide whether a computer program could be patented or not. The first step was to make sure the claim was properly construed, then to identify the contribution made by the program and then to identify whether the function of the program fell wholly within the exclusions in the EPC. If so, it could not be patented. If not, the program could be considered for patent.

In the case in question, a computer with the software would be a more efficient and reliable computer. In addition, other devices would benefit from the invention. The solution proposed was a technical solution and was innovative.

The application to deny the patent was therefore refused.