Despite this, the United Kingdom Intellectual Property Office (UKIPO) regularly grants patents to inventions that are partly or wholly implemented in software.
The extent to which this should be done under the current law and the approach to be used in assessing whether a patent application describes an invention has been settled by the Court of Appeal.
Article 52(2) of the European Patent Convention (EPC)[2] includes a slightly different list of non-inventions, although "programs for computers" are present.
The case law in the United Kingdom relating to excluded subject matter in general, and computer programs specifically, has a somewhat sporadic history.
[3] Only in 2005, in the judgment in CFPH LLC's applications,[4] did the UK Courts again consider the issue of excluded subject matter in detail.
Subsequently, in October 2006, the Court of Appeal heard their first case relating to the validity of computer programs in nine years and handed down their judgment on the matter of Aerotel v Telco and Macrossan's Application.
As claimed, the invention was nothing more than a conventional computer which automatically displayed a crystal structure shown pictorially in a form that would in the past have been produced as a model.
The only advance expressed in the claims was the computer program which enabled the combined structure to be portrayed more quickly.
The judge therefore believed that it would be wrong to apply the old ideas of location to inventions of the type under consideration.
The claimed invention in Macrossan's application was an automated method of acquiring the documents necessary to incorporate a company.
Macrossan's patent application was rejected for not being an invention since it was found to relate to a computer program as such and to a method of doing business as such.
The Court's reason for this rejection was that there was no contribution made by the claimed invention that lay outside excluded subject matter.
To the disappointment of patent attorneys, the House of Lords refused leave to hear the appeal, citing the reason that the case "does not raise an arguable point of law of general public importance".
[9][10][11] After the judgement in Fujitsu's Application, the courts did not hear another case relating to the exclusions to computer programs for eight years.
Although briefly of great importance due to the UKIPO swiftly altering their practice to follow its recommendations,[13][better source needed] the idea in the CFPH judgment to consider whether an invention is excluded by looking at the novel and inventive advance has been disapproved by the more recent Aerotel and Macrossan judgment.
[citation needed] As soon as a European patent is granted (provided that no opposition is filed), then final authority to interpret Article 52(2) and (3) EPC rests with each national jurisdiction and any person may apply to the UKIPO or the UK courts to have a patent granted by the EPO revoked in the UK.
There is to date no supranational European system for patent litigation, so the courts of each EPC Contracting State retain the final say.
Compared to the EPO, the UKIPO have consistently taken a very different approach when deciding whether or not to grant patents involving software.
It was noted by the Court of Appeal in Aerotel and Macrossan that using the reasoning of most of the EPO case law (such as T 258/03 – Hitachi) would result in the same final conclusion as the "contribution" approach.
[15] This is disputed by groups such as the Foundation for a Free Information Infrastructure who consider that the EPO is consistently granting patents that would be refused by the courts in the UK and elsewhere in Europe.