There are several areas of subject matter which UK (and European) patent law specifically excludes from being patentable. These are:

• a discovery, scientific theory or mathematical method;

• a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever;

• a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer;

• the presentation of information;

• any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process;

• methods of treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body – products, substances or compositions for use in any such methods are patentable;

• inventions where the commercial exploitation of which would be contrary to public policy or morality.

For all but the last three areas, the exclusion only relates to the extent that the patent ‘relates to that thing as such’. Taking a mathematical method as an example, it has always been possible to obtain a patent for a non-obvious invention which uses a mathematical method to achieve an advantageous result. The use may, for example, be in the use of a device or in a process, or embodied in the final form of a device. In summary, a patent application for a mathematical method would be rejected but an application for a control system that used a mathematical method would most likely be accepted.

Computer implemented inventions

For many years there has been a misconception that software-based inventions are not patentable. However, there have been many tens of thousands of patents granted in Europe and in other countries covering computer software.

Part of the problem is that computers and software are often central to other categories of invention that are excluded from patentability. For example, a computer implemented business method should be excluded under exclusions for being a computer program and for being a business method.  However, a computer implemented image processing system that makes a technical change/improvement to an image should avoid excluded subject matter objections because it is said not to be a computer program as such.

If the end result of a computer implemented invention does not fall into one of the other excluded categories such as a mental act, presentation of information or method of doing business then the invention may be patentable in Europe – subject to novelty and inventive step.

While patent law in Europe is based on common concepts, its implementation has often differed. This is particularly the case for granting patents for computer implemented inventions. Many inventions fall into the definition of a computer implemented invention and are generally agreed to be patentable – for example, telecommunications systems, control systems, etc.

There are opponents of ‘software patents’, particularly the supporters of the open source software license model who argue that patents covering software are damaging to innovation and competition. This argument has little to do with software per-se and there has been a notable lack of evidence showing specific damage to the software field. It can in fact be argued that patents are one of the few ways a small innovative company can protect its ideas from the bigger players in the market. It is relatively common for the smaller companies to be bought specifically for their IPR and there is as much evidence that patents are beneficial as there is to the contrary.