In two hearings published earlier this year (O/246/17 and O/390/17, available at www.ipo.gov.uk), the UK Intellectual Property Office has agreed with the applicant and reversed the patent office examiner's allegation that the subject-matter of each application related to fields excluded from patentability. Both applications related to computer-implemented inventions.

In both cases, the hearing officer applied the Aerotel/Macrossan test to determine whether the subject-matter was excluded. The first case related to a user display system for use in a process plant.

The display system is configurable, whilst the plant is running, such that a plant operator may alter which aspects of the process plant are represented on the display screen. Updated control data is generated and transmitted to the process plant based on how the display is configured.

The second case related to a system that is capable of localising airborne targets such as birds.

The system integrates a radar device and a specialised track database which receives and stores radar data in real-time, and can generate historical statistical reports on-the-fly.

The cases are notable because the UKIPO is notorious for refusing applications in hearings that consider excluded subject-matter. In 2015, for example, only one application was allowed from 21 hearings relating to excluded matter, and in 2016 there were no cases allowed at all from 21 hearings.

Therefore, in these two years, the rejection rate has been over 97%, meaning that if a UK examiner raises an objection of excluded subject-matter and does not back down, it could mean game over for the application in the UK.

In view of this, for computer-related inventions, it might be wise to consider protection in the UK via the EPO rather than via the UKIPO.

So can we expect to see a softening in policy by the UKIPO?

Looking further back, from 2010 to 2013, at least 88% of UKIPO hearings related to excluded matter were unsuccessful. The rate in 2014 was 73%, though there were a lower than usual number of applications in that year. Overall, though, the success rate has been very low for a number of years.

Looking at 2017 in more detail, even though two recent cases have been found in favour of the applicant, this is still in the context of 27 hearings related to excluded subject-matter being refused in 2017 so far – a rejection rate of over 93%. Therefore, whilst two successful cases this year is encouraging, being twice the number of successes from the previous two years, it is unlikely that this marks a change in the likely outcome for such cases. Therefore, the EPO remains the most promising route for obtaining protection for computer-related inventions.

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