law, less ordinary - legal opinions from Browne Jacobson » Software

A Free Reign for Functionality?

Hannah — Tue, 10 Aug 2010 15:16:21 +0000

The scope of copyright protection for computer programs has come under scrutiny once again. The view of the English Courts has been that copying the functionality of a program which does not involve the copying of source code or graphics does not amount to infringement of the copyright in the program. In SAS Institute v World Programming Limited, the Judge’s preliminary ruling followed the previous court decisions but he acknowledged that guidance on a number of aspects of this area of law was required from the ECJ. It will be interesting to see if the ECJ upholds the approach taken by the English courts: if it does, then claims will have to be based on the copying of other elements of computer programs such as screen displays. Whilst this approach may be difficult for software owners to accept from an ownership perspective, it does provide the freedom to develop competing software so long as the source code and graphics are not copied.

Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

"Business as usual" on US patentability

Hannah — Thu, 01 Jul 2010 14:08:47 +0000

Like England fans waiting for a World Cup tournament success, technology providers have been eagerly expecting Supreme Court guidance on the patentability of business methods and software inventions in the US. Unfortunately, they may be equally disappointed. Finally the decision of the appeal of Re Bilski has been delivered.

The Supreme Court has upheld the Federal Court’s view that an invention is patentable if it is “tied to a particular machine or apparatus” or if it “transforms a particular article into a different state or thing”, but has refused to confirm that this is the exclusive test.

It has however refused to endorse the earlier, far wider test requiring the invention merely to produce a “useful, concrete and tangible result”, which was set down in the State Street case, and which caused the patent applications to come flooding in. So at least the hi-tech world knows that there are some boundaries, but I suspect that is scant consolation.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com