How do patented IT processes work?

[WebChris]

I'm looking for some straightforward advice (I hope it will be anyway!)

How do people enforce a patent that contains a software process?
I'm looking at developing a piece of software, an app, for a mobile phone, just for the UK market. I've found various patents the have similar ideas within them but they are more process patents.

Am I right in thinking that as long as my app does not copy that process (in any order), I'm ok to proceed with my idea? My idea is similar but does not make the same steps that the patented process does.

And I'm pretty sure that they would not enforce just part of the process, for example, the patent describes a mobile device passing data to a server to obtain marketing data where the customers location is know, surely every app that uses banners and GPS does this.

The other thing is that the main patent that I've found is from the US and from my research, the UK wouldn't allow an idea such as this to be patented - am I right in thinking that too?

Any pointers gratefully received.

 

[soundengineeruk]

All my time in the industry, never had to think about this.. Never built software that for sale to public, only clients solving business problems.. Taken a page from other software, but never a copy of the process as there usually a different spin on it or direction.

A quick gander, patenting software seems like a real minefield. Patenting software protects the functionality/underlying idea behind the software and guards against copying of the software, even if the code is different.

Is app you basing your idea on, is that a registered patent?

 

[WebChris]

I agree, I've been writing web software for 15+ years and never given patents a thought - only when a client said - is it patented? did I open the lid on pandoras box.

In this instance, my software is a free app to the end user (paid for by the branding). It starts differently to the patent I've found, does the same bit in the middle, and then does something else.

So my question is, if a small part of my application copies a small part of someone elses patented process - is that ok?

Would I have to copy the process exactly to be in trouble?, or is it allowable to say, your patent covers starting at A, doing B resulting in C ... where as my app starts at D, does your B and results in something that looks like your C, but isnt delivered the same way.

 

[F_B]

Software patents are a minefield and the rules are always changing. They also vary depending on jurisdiction. A software patent may grant in the US, but be rejected by the European patent office.

However, the important bit is to determine:
1. Is the patent granted and in force in the jurisdiction you intend to sell the product? A dead US patent application is unlikely to cause an issue, whereas a granted UK patent is a potential issue.

2. What do the claims of the patent cover? The scope of protection afforded by a patent, in the UK at least, is dictated by the claims, as interpreted by the description and figures.

If a claim recites process steps 1, 2, and 3, and your software performs steps 1, 2, and 3, your software will fall within the scope of the claim.

If your software performs steps 1, 2, 3, and 4, your software will fall within the scope of the claim, as it relies on the patented steps 1, 2, and 3.

If your software uses steps 1, 2, and 4, but not 3, your software will fall outside the scope of protection.

Determining whether a product infringes a patent is not straightforward as words can be interpreted differently by different people. In the UK patents are given a purposive interpretation, i.e. what did the writer of the patent mean at that time. The scope of a patent is somewhere between the literal definition of the words in the claims and all conceivable interpretations.

 

[WebChris]

Thank you, that clears it up as the patent I've found, even if I loosely interpret the contents, still uses similar steps but in another order and adds other processes too.

Appreciate nothing here is binding etc. I'll take a punt on the idea as I've now seen lots of other companies large and small doing the thing I thought was patented.

As some of these are massive UK companies, I'd assume they would have to state somewhere that they were licensed to use a patent if one was applicable?

 

[F_B]

There is nothing in the Patents Act 1977 which stipulates a patented product must be marked as such.

Although, having said that a product should be marked as patented (if it is protected by a patent), as in infringement proceedings, if a defendant can prove that he was not aware or had grounds to suppose, that a patent existed no damages will be awarded (Section 61(1) Patent Act 1977).

So it would be in the company's interest to label their products as patented in order to be able to claim damages.