Tuesday, May 31, 2005

UKPTO TRIES TO FIGURE OUT "TECHNICAL CONTRIBUTION", TO NO AVAIL: The UKPTO recently held a number of workshops on software patenting in the EU, with a particular focus on defining "technical contribution" for patentable claims (the report may be found here).

Attendees were given the opportunity to suggest their own definitions of "Technical Contribution". This resulted in some 208 responses including a number which appeared to reflect general opinions about the Directive at large, rather than focussing on the question at issue. To keep the number of definitions to a manageable number, 11 were selected for testing in the workshops. These reflected the most popular and were representative of a wide range of views. The responses selected included a definition provided by the Foundation for a Free Information Infrastructure (FFII). The definitions included:

Definition A: "Technical Contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features.

Definition B: "Technical Contribution" means a contribution made by a claimed invention, considered as a whole, to the state of the art in a field of technology. "Technical" means belonging to a field of technology. New teaching about the use of controllable forces of nature under the control of a computer program, beyond the implementation of the data processing procedure itself, is technical. The processing, handling, representation and presentation of information by a computer program is not technical, even where technical devices are employed for such purposes.

These were the two more popular definitions, and as you may have already guessed, the definitions confuse the issue more than they define. In fact, the conclusion from the 13 workshops, which were attended by more than 300 people, was that the definition of technical contribution in the directive is "ambiguous and too liberal", the UKPO said.

The attendees of the workshop discussed in groups a number of fictional patent claims and assessed whether various definitions of technical contribution would allow these patents to be passed. Of the nine fictitious case studies the UKPO said should not have been patentable, four were let through by the directive's definition and only two were disallowed, with the remaining three leaving the workshop attendees unsure, according to the results on the UKPO website.

Steve Probert, deputy director at UKPO, admitted that a better definition may be found by modifying the current definition but said the UKPO cannot change the UK's political policy on this.

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