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[Fsfe-france] Brevet logiciel devant la cour d'appel UK

From: Laurent GUERBY
Subject: [Fsfe-france] Brevet logiciel devant la cour d'appel UK
Date: Mon, 19 Jun 2006 12:44:57 +0200

Via A2K.

A noter que la loi n'a pas changé, je suis curieux de ce que va
dire la cour d'appel de son dernier jugement sur le sujet.



English Judge OKs software patent case
Says has 'real prospect of success'
Published Monday 5th June 2006 08:55 GMT

The exclusion of computer programs from the patenting process will be
tested in a Court of Appeal case that could turn UK patent law on its

Lord Justice Jacob has given permission for an appeal to be heard over an
online system of document assembly that was previously ruled to be
excluded from the patent provision. Jacob's decision could clear up a
till-now murky area of patent law.

"The issue of exclusions is of public interest, sufficiently uncertain and
thus worthy of consideration by the court," wrote Jacob in his decision to
grant the right of appeal.

The case rests on a series of exceptions to the patent law, and two in
particular. It will test the exclusion of anything that is a "mental
process" and anything that is a "computer program".

The case concerns Australian resident Neal Macrossan, who built a web
system that automatically gathers the documents needed to incorporate a
company in the UK. Using a series of increasingly focused questions, the
system automatically generates and registers the complex series of
documents on behalf of a client.

His application to patent the process was denied by a Hearing Officer of
the Patent Office on the grounds that it fell foul of the exclusions
contained in both the European Patent Convention and the UK Patents Act.

The Act states that something cannot be patented if it is: "a scheme, rule
or method for performing a mental act, playing a game or doing business,
or a program for a computer". It is this set of exclusions which Jacob
calls "sufficiently uncertain" to merit an appeal.

The case will constitute a rare test of those exclusions as they relate to
computer programs. In 1997 Fujitsu was involved in a similar case heard at
the Appeal Court. Fujitsu wanted to patent a computer-based process which
modelled crystal structures, something previously only possible through
complex plastic modelling.

The court ruled that because the computer simply sped up an existing
process, the application must fail because the only change in the process
was that it was done by a computer program, which excluded it from patent

The Patent Office Hearing Officer's original ruling came to similar
conclusions. Hearing Officer Mrs S E Chalmers said that some of her
rulings "follow the decision of the Court of Appeal in Fujitsu Limited’s
Application," and that "this method [Macrossan's product] is replicating a
mental process and hence the invention falls within the general ambit of
the 'mental act' exclusion."

Macrossan took the Patent Office to the High Court over its decision
earlier this year, only to be rebuffed again. Though the High Court
pointed out that the Patent Office rules had changed in the year since
Macrossan's hearing, Justice Mann said that the application should fail
both on the grounds of being the automation of a mental act and of it
being a program for a computer.

Jacob's permission to appeal raises the possibility of a new
interpretation on one, or indeed both, of those crucial exclusions in an
area untested at this level in recent times. In his decision, Jacobs wrote
that "the arguments have a real prospect of success".

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