Super Mario comes out fighting for patent

Earlier this year the UK Patent Office refused to award patent protection to a software technique Nintendo use in the Super Mario Kart game to get crashed cars quickly back on the track. Now another similar decision on software patents has been appealed to the High Court, according to IPKat, who says:

"The appellants allege that the UK-IPO’s practice undermines the ability of British industry to protect inventions reliant upon the development of new software. Each applicant has developed novel software, the control and distribution of which they say is critical to the success of their business. Nicholas Fox of Beresford & Co. said in the lead-up to the appeal,

“Copyright protection only protects code against copying. In contrast, patent protection enables a company to monopolise an invention even if competitors independently come up with the same idea. In order to protect their commercial interests companies need patent claims directed towards the products and processes that are sold in the market place. In the case of computer based inventions this means that claims to disks and downloads embodying an invention are required.”

In Court, the appellants argued that software on a disk represented a "dormant technical effect in waiting", analogous to a medical pill that just sat there doing nothing until the patient took it. Using the same principle, the software would produce a technical effect when run on the computer. [IPKat comment: this seems a new argument, and an interesting approach, but arguing by analogy is rarely helpful; after all, medicines themselves are not excluded under section 1(2)]

They argued that, following the landmark IBM decision T 1173/97 at the EPO, a computer program product is not excluded from patentability under Article 52(2) and (3) EPC if, when it is run on a computer, it produces a "further technical effect" which goes beyond the normal physical interactions between program and computer, i.e. between software and hardware. The EPO approach has been broadly consistent in its decisions since then."

Thanks to David Gerard via ORG for the link.