Legal update software

Peter Finnie, managing partner at Gill Jennings & Every, discusses why the UK’s legal system is overdue an update to cater for a world largely driven by software.

The microprocessor, the pocket calculator, the floppy disk, the very first Apple computer, and Pong. The 70s was a decade of great innovation, with technologies that would go on to shape the way we live today – but it’s safe to say that a technical breakthrough looked very different back then.

Yet, the UK’s patent legislation hasn’t been updated since 1977, which unfortunately leaves the legal system with the exact same outlook on technology as it had 40 years ago. The failure of UK patent legislation to evolve has put the legal sphere out of joint with the biggest drivers of the technology sector, and threatens to put the UK’s digital economy at risk.

The Patents Act 1977

It only takes a quick glance at the companies coming out of innovation centres across the country to see that, today, the majority of UK invention is software based. In 1977 however, computer programs were treated in the same way as works of literature, protected automatically by copyright, rather than technical innovations in and of themselves. Without the ability to predict that software would one day be the driver behind most computer implemented technology today, “programs for computers” were excluded by the Patents Act, along with the likes of mathematical methods, mental acts, and business methods.

The problem is that, while copyright is a valid form of IP for protecting software, it is limited in that it only protects the specific expression of the code. Copyright does nothing to prevent a competitor copying the underlying solution implemented by the code when executed. For example, you could not steal the code behind a new ride-sharing app, but you could develop your own app that has exactly the same features if you write the code independently. Only a patent can protect an idea.

It is possible to patent software, thanks to a saving clause in the Patents Act that computer programs are excluded “only to the extent that a patent or application for a patent relates to that thing as such“. This essentially means that if the computer program offers a technical innovation over the prior art it should qualify for protection.

The result of this innocuous clause is 40 years of case law trying to determine exactly what “technical” is – a term that the UK Patent Office and Courts refuse to be drawn on a definition of. Each and every patent application for software goes through a test to see if the underlying invention has a technical contribution to the state of the art. This is a test that no other form of innovation is forced to go through, and the default position seems to be that it is disqualified, based on an antiquated and subjective idea of what technical innovation is in the minds of those who assess these things.

For example, a new design for an aeroplane engine would be considered technical, but software for an AI automatic pilot may not. Yet, it is clear to most objective observers that the technical innovation of the second is equally great to the first.

The legal system is overdue a software update

The legal system’s treatment of software becomes an ever-increasing liability as we reach a new phase of innovation – the 4th Industrial Revolution. Artificial intelligence and the Internet of Things are the next frontiers of technical progress in almost all industries and sectors – yet, they are both software defined and will absolutely not be patentable unless the UK Patent Office’s perception of ‘technical’ is radically changed or the legal exclusion is removed entirely.

Without the ability to get the necessary protection for their technology in the UK, there is a very real risk that companies will look to other markets with a fairer approach to the protection of innovative software. Not only do we risk the companies that could lead the next digital revolution leaving the UK’s shores, but we’ll also lose vital investment into the UK tech industry – as patent protection is often a key factor in investment decisions.

The UK has a long history of software innovation – having been at the cutting edge of everything from telecommunications to game design. British software unicorns are held up as champions of our little islands’ continued position at the forefront of global innovation. So, it is time that we ask ourselves why we would challenge such a critical sector with legal barriers to protection, and position the UK as a country that is unfriendly to the digital revolution?

The solution is simple: the law needs to be updated for the realities of the 21st century. We should recognise that the world is now – quite literally – driven by software, and remove the exclusion for computer programs from the 1977 legislation. By rebalancing the scales, and putting software back on equal footing with other technical innovation, the country would send a clear message that the UK’s tech sector is open for business.

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