The computer represents the greatest technological advance in the last fifty years and computer programmes (software) are the main intellectual property underpinning the IT industry.
In contrast, the law protecting software is far less progressive. Much of the current legislation stems from the mid-1940s which provides that software developers are only protected by the ‘soft IP’ of copyright, rather than the ‘hard IP’ of a patent. Due to its basic nature, software was classified as to a type of copyright akin to literature. Indeed judges have often drawn comparisons between the plot of a novel and the algorithms used to develop a source code.
The 1977 Patent Act went further in classifying software as ‘soft IP’ in expressly excluding computer programmes from patentability. But as software becomes ever more complex, the obvious limits of copyright as an effective means of IP protection resulted in a number of speculative applications for patents, which were, until recently, all rejected by the Intellectual Property Office (IPO).
But now a recent Court of Appeal decision in Symbian –v- Comptroller General of Patents provides that certain types of software can, for the first time, be patented
This case is potentially very important to software creators due to the advantages of patent ownership. Patents give greater protection and value than simple copyright. A registered patent gives a 20 year monopoly for manufacture of a product, during which time imitations and copy-cat inventions will be deemed unlawful and will entitle the patent owner to damages and/or an injunction.
The effects of the Symbian are still to be fully seen but already software patents have been granted by the IPO.
Kirwans are hosting an IP/IT seminar in the Spring to coincide with the Symbian case. This should be of great interest to IT businesses, software developers, intellectual property lawyers and patent attorneys seeking clarification and an update on the current state of the law.
If you are interested in attending you can contact our events team on 0151 229 5600.
Philip Gray
Commercial Team