‘Software as such’, a further determination of the meaning in the UK

Case in Point: Apple vs. HTC, Court of Appeal Case numbers A3/2012/2043 and 2044, 3 May 2013

As we move further into the information age, more and more technology is implemented using software. However, whether or not a specific software based idea can be protected via a patent is a complex area since the UK patent act states that ‘software as such’ cannot be protected. There is now a significant body of case law that determines what is meant by the phrase ‘software as such’.

This body of case law has been added to by the on-going mobile phone litigation that is occurring around the world between Apple and its competitors. However, a recent Court of Appeal decision has added further clarification in re-visiting a High Court decision which revoked an Apple patent which the High Court held to be excluded subject matter; i.e. unpatentable.

The patent in question related to how touch screen devices can be arranged to handle multiple touches to the screen. Apple had a patent to a technique which allowed the operating system to filter out multiple touches to the screen, should certain flags be set, to make the task of writing an application easier for a programmer. This was held by the High Court to be a computer program and therefore excluded from protection.

Software can be protected as long as certain criteria are met which summarised at a very high level means that the software must create a tangible effect outside of the computer or make the computer run more efficiently. The Court of Appeal overturned the logic of the High Court and held that how to handle multiple touches to a screen was essentially technical and caused the touch screen device (such as an iPhone or iPad) to operate in a new manner. Therefore, whilst implemented by software, the new idea was not software as such (since it resulted in a better device) and therefore the idea was patentable.

This decision has perhaps softened the view of the UK courts a little further as to what is and what is not protectable. As the above comments will no doubt highlight, what is and what is not protectable is a complex area and an initial discussion with a patent attorney skilled in this area of law may well be necessary to help determine whether an idea is protectable.