back to article 'Mental act' computerisations no longer automatically unpatentable

The UK's Intellectual Property Office has changed its guidance on how its reviewers will consider the 'mental act' exemption to patentability when assessing patent applications for computer-implemented inventions. Under the UK's Patents Act inventions must be new, take an inventive step that is not obvious and be useful to …


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  1. Forget It

    Oh my head hurts just thinking about all the possible loop holes.

    IPO Turing test!

    If computer appears intelligent enough to simulate a mental act then

    you can't patent it.

    As long as it remains pretty dumb then you can.

    go figure ....

  2. Ken Hagan Gold badge

    Not surprising

    The IPO would be rather silly not to change if the courts say they are currently doing it wrong. However, in a sane world, this would be an Emperor's New Clothes moment, when everyone suddenly realises that the floodgates are open and we need to change (or clarify, **) the law. Sadly, I suspect we live in a daft world and will now all drown in a flood of bogus patent claims.

    (** The fact remains that "using a computer to do a complex calculation" is not non-obvious and there is more than half a century of prior art for using computers to make previously infeasible approaches suddenly feasible.)

  3. Tomato42


    If a computation can be performed mentally, doesn't it mean it's bloody obvious?!

    And here I was, thinking that only US patent office is full of morons that consider shoe lacing patentable.

    1. Anonymous Coward
      Anonymous Coward

      In reply to Tomato42..., it doesn't, for at least two reasons -

      Firstly, there are plenty of processes, calculations etc that no one has thought of *yet*, so simply because these can be thought of as amental process does not make themobvious.

      Secondly, getting a computer to do something that in principle a human mind could do it often very, very difficult - and to have the IPO then say for example 'oh, recognising poorly scanned text is just a mental act' is frustrating and ignores the achievements of the inventors in getting it to work at all..

  4. Thomas 18
    Thumb Down

    Patents promote growth?

    "Other inventions that cannot be patented include 'a discovery, scientific theory or mathematical method'"

    Well this has definitely stunted science and maths, when was the last time substantial money was invested in science? well except for the hadron collider... and the telescopes... and the ISS... and the supercomputers.

    1. BristolBachelor Gold badge
      Thumb Up

      You are also forgetting all the basic rules of physics and knowledge about bilogical processes, how the body works, how to fix it etc. No, we wouldn't have got any of them unless the people doing the work could patent it! /sarcasm

      Just imagine apples not falling from trees unless you paid a license fee first :)

  5. The BigYin


    "The UKIPO will now be as useless and counter-productive as the USPTO".

    Seriously people - NO SOFTWARE PATENTS!

    Copyright and trademark laws are pretty much all one needs.

    Software patents are just far too dangerous as all they do is stifle innovation by allowing the majors to bully (or sue into bankruptcy) smaller developers. They do NOTHING to help the IT industry. All they do is help lawyers and one only has to look at the recent headline about Samsung/Apple to guess at the millions being wasted in patent suits and technology stagnates as a result.

    1. Anonymous Coward
      Anonymous Coward

      Yes Software Patents!

      Copyright is *not* enough to protect software - there is a principle in copyright law know as the 'idea-expression dichotomy' which means that you can protect literal copying, but not the copying of an idea; it was made clear in EasyJet v Navitaire that one can just steal the idea if you then independently express it.

      Patents protect the underlying ideas, and there is no difference in terms of merit between an inventive algorithmic process and, say, and inventive chemical process. In both cases there was inventive activity and in both cases someone spent money employing people, or invested money in the business or otherwise took a risk on the understanding the the fruits of their investment and work couldn't just be stolen by a competitor. In this regard, software is absolutely no different to any other industry.

      The only real differences are that in principle the software can be free to manufacture and hence it is possible to distribute genuinely free alternatives if you want, and also that there are few bedroom-chemists knocking out products (at least legal ones) in contrast to software. However neither of these facts alter the merits of patenting and moreover in these cases there is often little economic reason to suppress them - which is why you have Open Office competing with MS Office, Firefox with IE Exprorer, Songbird with ITunes, etc.

      So come on, face reality - patents don't suppress the open source mement in practice, but protect the investments needed for genuine innovations to come to fruition.

      1. The BigYin
        Thumb Down


        Who's talking open source? I never mentioned it.

        The fact is that, even without looking at other source and "copying it", programmers come up with the same answers time and time again. These got given the trendy name of "Patterns" a while back and various people coined it in providing consultancy, frameworks, libraries, tutorials etc and nary a patent in sight. This is how it should be.

        Can you imagine the Internet or the World Wide Web if ARPA, Sir Berners-Lee etc had patented all their ideas, rather than throwing them out there to be improved upon? You can't, and that's because it probably wouldn't exist.

        "You linked two networks? PAY YOUR LICENSE FEE!"

        "You used a hyperlink? That will be $0.01 per link as a fee, please. PAY UP OR BE SUED!"

        There are dating sights graphical suites and a whole host of other software that is patented when they are nothing more than a jumped-up mathematical operations (usually a matrix transform of some kind). This is a patent on pure maths - can you see how monumentally DUMB that is?

        Then we have patents infecting other things such as standards. If OO/LO wish to compete with MS, they need to support the "Office Open XML" standard; which they cannot do without breaching MS's patents. This means no one bar MS can fully implement an ISO standard without breaching patents or MSs covenant [not] to sue. Can you see how STUPID that is?

        Patents are the wrong tool for protecting software. Just as a hammer is the wrong tool for stirring tea.

        1. Ohb1knewbie
          Thumb Up

          Re: Patterns

          This is the exact point. Just because you got there first doesn't make you special, just lucky. History is replete with examples of the same idea emerging within weeks/months/years from isolated individuals or more recently teams.

          As I've said elsewhere,

          Stop and ask yourself who invented/developed calculus, the cotton gin, the telephone, the automobile, or the airplane? If your answer is a person who spoke English, you need to do a bit more research because your thinking underlines the problem that plagues our current patent system and the strangle hold it has on innovation and the speed of human progress in today's world.

 believe that if they had not made the contributions that they did no one else would have either is simply stupid. Every single one of them were enabled by the sum total of humanity that preceded them, by their hard work, and by a heaping dose of blind luck in the circumstance and timing of their birth (what Dawkins calls the lottery of birth).

          When you remove the knowledge base from which most inventions emerge, most patents amount to little more than one smart person calling “shotgun” first in the dash to the front seat at the patent office before some other smart person can get the words out of her mouth.

          At this point in human history only design should be granted patents for longer than five years. The sooner the underlying technologies are freed the sooner all of humanity can advance together without the drag of those who were lucky enough to get there first. Everyone would have to compete on execution without the burden of subsidizing whoever managed to yell “shotgun” first, and the sooner we'll be free from situations like Microsoft using secret extortion tactics to make money off of Android.

      2. Naughtyhorse

        utter bollocks

        "invested money in the business or otherwise took a risk on the understanding the the fruits of their investment and work couldn't just be stolen by a competitor."

        copyright affords ample protection in this case. If i am your competitor and release a rival product that copies your code wholesale, and therefore saves me all that pesky r&d then you could legitimately sue the ass off me, win and take all my money.

        If i merely wish to compete in a market that you dominate, then i get a building full of smart people to all scratch their heads in unison and make a new product, that does what your does, but better, cheaper, or faster, or more elegantly, or more efficiently.... or just with a different UI. and compete in the marketplace, and whoever wins takes all the other guys money. And so long as i developed it, then there is sweet fa you can do about it

        that's how it is supposed to work, so i am (electronically) typing this, without worrying about Gutenberg's lawyers coming to take my house away.

        I have a great presentation on this, but it only works on a Samsung tablet, so legally i cannot show it to you - all due to a boneheaded patent troll. :-)

        this puts uk IP at the top of a slipery slope that leads to the innovation stifling morass that is the US's IP industry.

        code is more like language or music than it is like say a carburetor (what they used to use before fuel injection, which your way of doing things would have suppressed) so it follows the same legal framework that currently protects the written word and music is the more appropriate route.

        i mean patenting a letter (lower case i for eg) would be insane wouldn't it?

  6. Dazed and Confused

    We're in big trouble then

    Now they've got a chink in the armour the patent lawyers will force everything through.

    Since we have a rule based on first to file the trolls will be trying to patent everything we've been doing for years and believed to be safely unpatentable.

    OK so we might be able to win on the basis of prior art, but we will have to prove our innocence and pay huge legal bills. The trolls my loose in the end but the latent lawyers will be the only winners.

  7. Anonymous Coward

    Oh dear.

    Software patents = bad. This is not a good move, whatever the jargon surrounding it.

  8. alain williams Silver badge

    What does Justice Birss QC understand ?

    What worried me is that what a judge considers to be "sufficiently technical to be considered patentable" is probably much simpler than a technical person may consider "sufficiently technical". I doubt that Colin Birss is a technical person.

    I also see a conflict of interest since his ruling is likely to bring more business to Three New Square chambers that he used to work for:

  9. Hayden Clark Silver badge

    Isn't Parliament supposed to be involved in the legislation process?

    Last I heard, anyway.....

  10. J.G.Harston Silver badge

    I've got this really clever algorthym for doing division of large numbers....

  11. Suburban Inmate

    Setting aside commercial and political issues...

    If you are patenting a mathematical method, aren't you patenting reality itself? Or am I missing something, which I genuinely may be.

    Note I'm not for a second suggesting that boffinry, mathematical or otherwise, has no monetary value.

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  14. Ohb1knewbie

    Wrong angle,,,

    Re: “Just imagine apples not falling from trees unless you paid a license fee first :) “

    You're not looking at this from a proper business perspective.

    Your apple trees have been observed to drop apples to the ground without you having a properly up to date gravity patent license agreement. Please remit post haste or forfeit all offending trees as well as the ground used to facilitate the infringement.

    Icon, 'cause I like wishful thinking and IANAL so still have one foot in the world of the reasonable.

  15. Alien8n


    No surprise when we live in a world that means you can trademark a wavelength of light (Barbie pink is a trademarked colour and you're not allowed to sell anything in that particular shade of pink unless you pay the makers of Barbie).

    Yesterday's Dilbert cartoon was so ironic, a real case of comedy mirroring fact.

  16. Iain Leadley


    I though people were patenting discoveries in DNA? So I have to pay a licence for 5% of me existing.

    But this says you can't patent a discovery.

    Have I missed something?

  17. Anonymous Coward
    Anonymous Coward


    To hell.

  18. Anonymous Coward
    Anonymous Coward

    Will ask Haliburton for permission to think some kinds of thoughts

    Patented processes may not be legally implemented without the consent of the patent holder. If a thought process is patented, then it is possible that you could violate the patent by undergoing that thought process. The safe way to think is therefore to broadcast prospective thoughts to all process-patent holders, and verify that you have permission for that thought process.

  19. Bluenose

    Investment Opportunity

    Any one up for creating a nice patent ownership company and getting MS and other to submit some of their software patents to us on a partnership basis. We'll do all the leg work and they can take a cut of all the money will received when we start suing people for breaching them?

    Can see a fantastic opportunity to make money hand over fist without actually having to do a lot. Opportunity would suit rip off lawyers, dubious business people and anyone else who thinks this is a good idea.

  20. Anonymous Coward
    Anonymous Coward

    Time to advise youngsters not to become programmers

    The lawyers have just turned this job into a minefield the way it is in the US. Who wants to risk losing your assets and savings by being sued after accidently infringing a patent you shouldn't be wasting your time searching for using an approach which is obvious to you ? Thanks but no thanks.

    AC because my job involves teaching students to become programmers.

    1. Graham Marsden


      "my job involves teaching students to become programmers."

      Hey, I've had a great idea for solving your coursework problem, so I'm going to patent it, then if anyone else comes up with the same solution I can sue them and pay off my student loans with *their* money!!

  21. Kubla Cant Silver badge

    What is a "Mental Act"?

    Do you have to be able to perform the computation in your head without paper and pencil? Are you allowed to mutter?

    Who has to be able to perform it? Everybody? Me? Stephen Hawking? Would he be excluded because he needs a computer to speak?

  22. Flocke Kroes Silver badge

    Nothing new here

    For ages the UK patent office has said you cannot patent software as such, but you can get a patent for software if you call it a computer implemented invention. Now they are saying you can get a patent for software as such. As there was never any difference between a such and a computer implemented invention, nothing has changed. As before, software patents although granted are still invalid. Given time, money and luck you can still get software patents declared invalid through the courts. But don't worry, they will fix that when they require all patent disputes to be conducted in a special patent court that will never invalidate any patents.

    Write to your MP. Get referred to the party's minister responsible for software patents. Write to that MP. Get a fobbing off letter. Reply with a debunking. Get another stupid responce. Copy the correspondence back to your MP. This is time consuming, mostly to calm down enough to avoid flaming, but it does work.

  23. M Gale

    Like the US and Japan?

    Of all the countries in the world, that judge has picked the two that are most insanely in favour of patenting maths.

    Anyone in favour of software patents who mentions those two countries as justification should be summarily dismissed as cretinous. Seriously, does Birss follow ANYTHING in the tech sector? Or is there a conflict of interest going on here?

    1. Vic

      The US...

      I'm not familiar with Japanese law.

      > that judge has picked the two that are most insanely in favour of patenting maths.

      He's also picked one that explicitly does *not* permit patenting mental processes. This was confirmed in Benson.

      Even the USPTO guidelines on eligibility specifically mention the case and state that mental processes are not patentable.


  24. Viv

    Your patent used version 1.00 software

    On a slightly different note, the patent ruling from the judge makes it possible to use simulation software in a patent application, so far so good,, so you do, and you get a patent published.

    Now a few years later I come along and run version 2.00 of the simulation software you used in your original patent application and I get a different result.

    Lets see you argue in court that your original patent is still valid when a large part of your claim structure just went west.

    For fun I also file an application siting your patent as prior art to patent my new results ;-)

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