Patenting software in the UK has for some time been a difficult task. As discussed in our November 2006 IT Bulletin, following the Macrossan/Aerotel decision in 2006, the UK Intellectual Property Office (UKIPO) had taken the approach that it would reject all claims for patents on computer programs "as such". The only way that applicants could indirectly obtain protection for their software was if it was incorporated into an invention that qualified for patentability or it was part of a patentable method for carrying out a function.

This is not however a satisfactory solution for software creators. Without a patent on the software itself it means that if a competitor sells, produces or markets a similar product incorporating the software in the UK the Patent Act 1977 offers only limited recourse. The Act will give no protection if the software is produced by the competitor in the UK for sale abroad.

A decision of the UK High Court in January 2008 in the Astron Clinica case has now made it clear that computer programs can be patented in their own right in the UK. (For further details please refer to the Herbert Smith Newsflash). The subsequent decision of the High Court in February in the Autonomy case has confirmed that ruling and also provided a very useful summary of software patent cases in the UK.

On 7 February the UK Intellectual Property Office issued a notice stating that they would be immediately changing the way they assess applications to patent computer software.