SMEs challenge Patent Office over absurd software policy

A group of five small hi-tech companies are taking on the UK Patent Office at a hearing today challenging a change in Patent Office policy on the protection of computer implemented inventions.

The five companies, Astron Clinica Limited, Cyan Holdings Plc, Inrotis Technologies Limited, Software 2000 Limited and Surf Kitchen Inc have all developed technology which the Patent Office accepts is patentable. The companiesí inventions range from skin imaging and printer drivers through to drug discovery, telecoms and micro-controllers which reflects the diversity of the companies involved. The only thing which links the inventions is that in part each of the inventions is reliant on novel software and it is the extent to which patentees can control the distribution of such software which is at issue at todayís hearing.

Up until November 2006, law in this area was clear. Following a decision of the European Patent Office in 1997, where an invention involves novel software, a patent owner is entitled not only to a monopoly on equipment programmed to undertake novel processing but the patenteeís monopoly also enables the patent owner to control the distribution of computer disks and internet downloads of the programs which configure an apparatus to perform a patented process. This was settled law throughout Europe accepted as such by the British Patent Office and all the other major patent offices in Europe.

Then in a surprise move, the British Patent Office announced that it would no longer accept claims which covered disks and downloads. The change places the British Office in direct conflict with the European Patent Office which also grants patents which have affect in the UK. Filing at the European Patent Office is however more expensive than filing at the British Office and any such patents tend to take longer to grant. The British Patent Officeís decision disproportionately affects British industry which normally chooses to file first at the UK Patent Office.

Nicholas Fox, of Beresford and Co, the patent attorney acting for the companies commented that: In a judgement a number of years ago, the Court of Appeal stated that it would be absurd, if on an issue of patentability, a patent application should suffer a different fate according to whether it was filed at the European or British Patent Office. Following the British Officeís change of practice in this area, what once was absurd has now become policy.

Speaking on their involvement in the appeal Prof Annie Brooking, CEO of Astron Clinica said, We have an active and aggressive intellectual property strategy at Astron Clinica, our intellectual properties are a core asset for the company and itís essential that we are not disadvantaged in protecting them relative to our competitors, especially by our own legal system!

Paul Johnson, President and CTO of Cyan Holdings said: Cyan is dependent on its ability to allow customers to download our software tools from our website. Cyan operates in 50 countries and is one of only a handful of publicly quoted British semiconductor companies. The Court of Appeal was correct in stating that this situation is absurd. It is also damaging to the high tech, entrepreneurial mantra that this nation will need to depend on more and more as traditional manufacturing loses ground.

Jon Williams, Group Product Manager of Software Imaging (Software 2000 Ltd) commented: Software Imaging is totally reliant on its intellectual property for its commercial success. Innovation is our business, and we rely on protecting it and licensing it as an integral part of our business model. Without the ability to protect Software 2000ís innovation it would prove difficult to compete in the marketplace - it would seem that the British Patent Office is putting British inventors at a disadvantage.

Michel Quazza, CEO of SurfKitchen said SurfKitchen is the market leader in on-device portals. We develop software applications which allow users to access the internet on their mobile phone. This dedicated software is SurfKitchenís unique selling point (USP) and it is wrong for the UK Patents Office to prevent us from protecting the success of our business and forcing us to apply for patent only outside the UK.

Judgement is expected within 2 months time.