- You can’t level the playing field by digging UK inventors into a hole
I look forward to the progress of the Intellectual Property Bill, which has completed its third reading with the Lords, and has now passed to the House of Commons.
As well as being of interest by potentially putting a reference to internet links on the patent statutes, the Bill will be welcomed by innovators in its support of the Unitary Patent, a single patent covering 25 EU Member States, streamlining and making more affordable the process of patenting across multiple European countries.
It will be interesting to see whether these changes benefit those who look only for software patent protection in the UK. Historically, there have been problems with patenting inventions related to software in the UK, namely that the UK Intellectual Property Office (IPO) tends to be more restrictive than the EPO as to what it considers patentable, despite UK law being based on the European Patent Convention, on which the European Patent Office bases its decisions, and high court pronouncements that “any substantial divergence would be disastrous”.
What this means in practice is that those seeking UK-only patent protection involving software have often found themselves having to file and prosecute their patent application with the EPO, since a positive decision by the EPO has typically allowed inventors to obtain UK protection in cases where the stricter interpretations of the IPO would have led to rejection.
I have to admit to having some sympathy with the IPO’s attitude, in that in the past, there have been far too many software patents granted which were of dubious validity. But this would appear to be primarily a problem of identifying prior art, rather than one related to the constraints of patentability, so that the IPO’s strict interpretation would seem to be an attempt to level the playing field by digging UK inventors into a hole.
It remains to be seen whether these changes might precipitate a change in the IPO’s stance, and help bring them into closer alignment with the EPO. I hope so.
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