Schoolboy Slip-ups and Software Shenanigans

The IPKat noticed a story in ZDNet.co.uk about the alleged threat posed by Microsoft to 'free' software such as Linux and OpenOffice. Microsoft has said that free software violates 235 of their patents, but has been so far been reluctant to say which patents these are. Microsoft also say it will not sue businesses using Linux distributions with whom it has 'partnered' (a euphemism perhaps?), such as Novell.

(left: not a very likely proposition, is it?)

Andrew Katz, a partner at Moorcrofts and open source software specialist, is quoted as saying that the possibility of infringement in the UK is "vastly smaller" than in the US, which may well be true. He also, however, says that the threats Microsoft are making do not apply in the UK, not least because Microsoft have "only 51 patent applications in the UK, including several failed and pending applications".

Surprised by this apparent state of affairs, the IPKat wondered if this could possibly be correct. How could the largest software company in the world have so few patents in this country, when they fight so hard to get their IP rights protected?

As we all know (don't we?), European patents are granted with potential effect in the UK (although it is down to the applicant to choose where they want the effect), becoming EP(UK) patents rather than GB patents granted directly by the UK-IPO. For obvious reasons, and not just those relating to cost, most big companies nowadays much prefer to prosecute their patent applications before the EPO rather than the UK-IPO. A quick search reveals that there are over 1,900 published EP applications naming Microsoft as applicant. Now, even if only a small fraction of these are granted patents having effect in the UK, 51 seems like something of an underestimate. Perhaps Andrew was thinking instead about the 51 patents/applications that come out when searching only for those granted by the UK Office.

Clearly, a little knowledge could be a dangerous thing, particularly if you might be worried about being sued by the biggest software company in the world. The IPKat would recommend those concerned to stay worried. Alternatively, you could think about making requests for revocation on any of those GB or EP(UK) patents that you might be worried about. Anyone can do it, even straw men. After all, they can't have any computer program product claims in them any more, can they?

More open goals here, here and here. How to revoke a patent here. Contact a qualified patent attorney here.

Update (19 September): ZDNet have issued another piece on the subject, quoting (almost accurately) this particular Kat at length, together with Andrew Katz's response to the above.

On another matter relating to a software company, Symbian, developers of software for mobile phones, are apparently not having a great deal of luck at the UK Intellectual Property Office at the moment, as John Cooper of patent attorneys Murgitroyd pointed out to the IPKat earlier this week. First they had an application refused relating to accessing DLLs on a phone, then one for a way of communicating between differently formatted memories on memory cards for phones. John wonders whether improvements in computer technology will ever be patentable in the UK if they don't involve novel hardware elements.

Whilst he can understand the impression that all these recent rejections by the UK-IPO may be having on the UK patent profession, the ever-skeptical IPKat is not so sure about extending this to any kind of general rule. Notwithstanding the obvious tightening up of the exclusions under section 1(2) after Aerotel/Macrossan, he thinks that the question is often really more to do with whether the invention ("what has the inventor really added to human knowledge", to quote Lord Justice Jacob) is a good enough one. Those applications that end up being the subject of hearings at the UK-IPO are inevitably going to be those that are less likely to be allowed in the end. As the UK-IPO has been at pains to make clear, software-implemented inventions having a contribution going beyond merely software are still patentable, and are most definitely still being granted.

Symbian are looking for a new patent engineer here.