Computer Programs And Their Exclusion From Patentability - A Case Review Of HTC Europe Ltd v Apple Inc [2013] EWCA Civ 4

The Court of Appeal has recently overturned a decision of the High Court that two of Apple's iPhone-related patents were invalid. Of particular interest was the "948" patent which related to computer devices with touch sensitive screens which are capable of recognising single and multiple touch events. The Court of Appeal held that Floyd J had incorrectly found that claims 1 and 2 of the "948" patent were invalid because they related to computer programs. Lord Justice Kitchin was of the view that "the judge took his eye off the ball in focussing on the fact that the invention was implemented in software and in so doing failed to look at the issue before him as a matter of substance not form. Had he done so he would have found that the problem and its solution are essentially technical in nature and so not excluded from patentability."


Today's multi-touch enabled devices such as Apple's iPhone, can be touched in any number of ways and locations on the device's touch screen. Ensuring that applications on the device are able to assess and process all of these different touches and respond to the correct touches has caused difficulties and complexities for programmers. If every application had to consider every possible multi-touch event, the application would need to process large amounts of incoming touch data driving up cost and results in applications becoming highly complex, even though they may only have simple functionality.

The "948" patent addressed the problem of how to deal with multiple simultaneous touches by proposing the use of two particular different types of "flags" associated with different parts of the display ("views"). The two types were: 1) multi-touch flags which indicate whether a particular view is allowed to receive multiple simultaneous touches; and 2) exclusive touch flags which indicate whether a particular view allows other views to receive touches while the flagged view is receiving a touch. The invention operates at all levels of the computer software and the flags control events passed from the lower layers.

"Technical contribution"

"A program for a computer" is one of several exclusions from patentability (see s.1(2)(c) Patents Act 1977). In assessing whether an invention falls into this excluded category, the Court of Appeal felt the key question to answer was whether the invention made a technical contribution to the art i.e. what does the computer program in this case actually contribute? Lord...

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