The UK Patent Family and Software Patents

The UKPO, surrounded by a circle of industrial patent lawyers, is the powerhouse of UK and even much of EU patent policy. THe UKPO is currently not involved in promoting innovation by having an efficient patent/copyright system but in imposing transaction costs for the benefit of patent lawyers and patent officials. They are thus transferring wealth from the productive sector of the economy to the nonproductive sector; away from job creation, towards making bloated sheltered professions even richer.

The Blair government is closely following and implementing the decisions of the UK patent family. In the European Parliament, Labour MEP Arlene McCarthy is using UKPO doublespeak, learned from UKPO employees and their circle of industrial patent lawyer friends, to impose unlimited patentability of algorithms and business methods such as Amazon One Click Shopping on Europe, while publicly proclaiming that she is aiming for the contrary. Similar doublespeak is also used by other Labour (and Tory) politicians.

There is not a single economic study, field survey or theoretical analysis, whether done in the UK, by the EC or elsewhere, that concludes in favor of software patentability. The current push is the work of the patent lobby (patent offices, patent lawyers, patent departments in companies) against the will of most SMEs, of technicians, and of economists. The French government has rejected the CEC/BSA directive proposal as not founded on a serious analysis on the current situation. The United Kingdom, led by its Patent Office, has come forward in support of the proposal and seems, judging from its various activities, more determined than ever in its drive to obtain from Brussels a rubber-stamp for its current illegal practise and to impose this practise on the rest of Europe.

The UKPO frequently holds "consultations" in order to show that it is not acting on its own responsibility but only responding to demands from "the industry" (= patent lawyers wearing hats of companies). When the "consultation" fails to produce the desired support, the UKPO simply reinterprets the results and does nonetheless what it had planned to do anyway.

UKPO wording	outsider meaning (for consumption by politicians and citizens)	insider meaning (as understood by patent professionals)
Business methods should not be patentable.	One-Click shopping or a solution to the problem of the travelling salesman by linear programming etc should not be patentable.	One-Click shopping and linear programming methods should be patentable as long as the claims refer to the operation of a machine (e.g. by running software on a computer).
The status quo should be preserved.	The present law, under which rules or organisation and calculation are not considered to be inventions, should be applied.	The present law should be amended or superseded, so that the patent office can continue to grant patents for non-inventions without having to fear a challenge.
We must not adopt the US practise.	Unlike the US, we must refuse to grant patents on rules of organisation and calculation.	We must blame all the embarassing problems with software patents on certain irrelevant peculiarities of the US system (such as reexamination, first-to-invent, the undiplomatically clear language of the State Street decision etc) which we would in any case be unable or unlikely to adopt.
An invention must have a technical contribution in its inventive step.	Only technical contributions to prior art (new teachings of how to harness the forces of nature) can be patentable inventions.	There should be no separate test of whether a technical contribution (= an invention) is present. Testing non-obviousness (= inventive step) is enough.
technical	related to harnessing the forces of nature	related to any kind of skill whose monopolisation could be commercially rewarding and for which the patent office might want to hire examiners
The current legal situation is confusing and needs to be clarified.	The incoherence in the current practise of the patent courts is unsatisfactory and must go away.	The law in its present form is painfully clear. It is standing in our way. We must replace it by an unclear formula, so that we can end this embarassing discussion once for all.
National patent laws need to be harmonised.	National patent laws need to be made compatible with each other by means of some common reference framework or meta-law.	Legislative power needs to be removed from democratic sovereigns and handed over to the international patent community. The already painfully clear and totally uniform national patent laws need to be muddled, so that national lawcourts can't rely on the laws but must look to the consensus of the international patent community for guidance.

The UKPO seemed to have a firm grip on the british MEPs. This was also expressed in two briefings, one by the UK government (i.e. the patent office) and one by the US government (same), which were directed only to british MEPs and which were circulated as governmental briefings of these MEPs.

The European Patent Convention of 1973 and the Patents Act of 1977 were apparently difficult to digest for the UK patent law estabilishment. The British delegation at the EPC conference of 1973 opposed explicit exclusions and was pacified only by the inclusion of the "as such" formula. In the Patents Act concept of "technical invention", which is inherent in the original EPC wording, was removed by a british rewording. This has led to communication failures and to proposals from the UKPO to reword Art 52 EPC in a way which, if understood in proper EPC terminology, would read as

The push for software patents at the European Patent Office (EPO) in the 1980s is reported by insiders to have been largely due to difficulties in explaining concepts such as that of "technical invention" to the influential British group. This was all the more difficult, as the EPO had yet to create its own precedents. Meanwhile, the practices of the EPO and UKPO have converged, and the UKPO is eager to change the EPC so that this new status quo -- very close to what the UKPO asked for in the 1970s -- can be legalised and made obligatory throughout Europe.

This extreme type of business method claim has later been rejected in Britain and may even be rejected today at the UKPO, at least as long as the basic idea is not carefully reformulated in some kind of computing jargon, which would make the idea look "technical". However algorithms, whether applied to business or more abstract computing or optimisation of oil drilling, still remain the same, and the difference between algorithms and teachings about the world of controllable forces of nature, as worked out by continental jurisprudence seems to have never been a major subject of discussion in british patent jurisprudence. Thus the decision whether a "technical" contribution is found or not seems to have been treated by the UKPO at a level similar to where the EPO is treating it today: claim wording and gut feeling.