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
Computer patents: possible changes to the
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.