A review of the Fujitsu case

What can you patent in the UK? Fujitsu on appeal

We reported the English High Court's decision in Fujitsu in the last UK Patent Review, when the application was dismissed on the grounds that this was "a scheme or method of performing a mental act" and so unpatentable.

The facts were as follows. Fujitsu applied for a patent for a computer related invention allowing a chemist to design new chemical compounds. The method allowed an operator to manipulate crystals of known structure and create a hybrid, designer crystal on the computer screen.

The Judge appeared to think that the claims were not to "a computer program as such" and not unpatentable on that ground, although the Court of Appeal was "not sure whether the Judge came to any conclusion as to whether or not the application consisted of a computer program as such".

The Court of Appeal considered that the computer and display unit were conventional. The computer program combined two crystal structures as instructed by the operator and achieved the same result as would previously have been achieved by making physical models. The computer program did no more than enable the combined structure to be portrayed more quickly. The Court did not consider that the computer program achieved any technical affect and that is was therefore "a computer program as such" and so unpatentable under Section 1(2)(c) Patent Act 1977.

Contrary to the High Court, the Court of Appeal did not, however, consider that what was being done was a method of performing a mental act, and so the invention was not unpatentable on those grounds.

The different views of the Judge and the Court of Appeal as to whether or not something was "a mental act" or "a computer program" emphasise the difficulties of advising in this area.

Computer patents: possible changes to the EPC?

Hopefully the discussions taking place in the EPO on possible modification to Article 52 EPC to allow computer programs to be patented will simplify the law and harmonise it somewhat in the countries of the EPC.