Computer Implemented Inventions at the UK Intellectual Property Office
In 2014, Landmark Graphics Corporation (a Halliburton company) filed a series of non-convention PCT applications relating to various techniques for assessing petroleum reservoir performance. Landmark then took the unusual step of filing national phase patent applications at the UK Patent Office rather than the European Patent Office (EPO), with its quite significantly different approach to computer implemented inventions. Whilst this has probably given Landmark a higher hurdle to overcome (and it is pleasing to note that they were generally successful with these applications), it has had the beneficial side effect that third parties now have a large number of recent decisions to assess the UK Intellectual Property Office’s current approach to excluded matter.
BL O/155/18 is one of a set of decisions (the others being BL O/112/18, BL O/138/18, BL O/140/18, BL O/143/18, BL O/148/18 and BL O/154/18) which between them relate to sixteen UK applications, and which were issued in early 2018. In this particular decision, the Hearing Officer considered whether what had been added to human knowledge was merely a computer program or mathematical method as such. He found that “the invention provides a flexible way of altering the way in which … geophysical data is presented to a user and is clearly directed to the technical field of endeavour of visualising characteristics of petroleum reservoirs.” There was also some discussion of errors being reduced and thus “the object [being] changed or manipulated in some way even though the underlying … data is not changed” – perhaps an echo of the old US Bilski machine or transformation test.
The Hearing Officer analysed the UK Patent Office Examiners’ approaches under the well-known Aerotel 4-step test, and generally concluded that the Examiners had applied this test too narrowly. The applications were therefore remitted to the Examining Sections for further consideration of novelty, inventive step, clarity and support issues. The Hearing Officer looked at EPO Boards of Appeal case law and commented that the approach used by the Examiners based on the UK Aerotel test may have been inconsistent with the UK Courts. Perhaps we will now see a revision of the UK manual of patent examining practice and a more relaxed approach to computer implemented inventions that will be more consistent with European Patent Office case law and, arguably, the UK Courts.
For more detailed information the main approach is set out in BL O/112/18.