Not content with battling Samsung in many jusrisdictions over tablet computers, Apple is also in dispute with HTC over technology relating to tablet computers and smart phones. In a judgment of the English Patents Court issued on 4th July 2012, [2012] EWHC 1789 (Pat), Floyd J handed a resounding victory to HTC. The judge found that three out of four Apple patents were invalid as being obvious. A fourth Apple patent was found to be valid, but was also found not to be infringed.

One of the patents was concerned with the operation of a device with a touch screen and this patent was also found to be invalid as relating to subject matter excluded from protection. Specifically the patent was found to relate to a computer progam as such.

When considering a patent claim relating to computer implemented inventions it is necessary to consider the contribution the claimed invention makes to the art. It is only if the contribution is "technical" that the invention is found not to be excluded. In an earlier case, AT&T Knowledge Ventures [2009] EWHC 343 (Pat), Lewison J (as he then was) had stated that it was impossible to define the meaning of "technical" but considered that there were a number of signposts to what amounted to a relevant technical effect. These were:

"i) whether the claimed technical effect has a technical effect on a process which is carried on outside the computer;

ii) whether the claimed technical effect operates at the level of the architecture of the computer; that is to say whether the effect is produced irrespective of the data being processed or the applications being run;

iii) whether the claimed technical effect results in the computer being made to operate in a new way;

iv) whether there is an increase in the speed or reliability of the computer;

v) whether the perceived problem is overcome by the claimed invention as opposed to merely being circumvented."

Floyd J, found that the Apple invention was excluded. He identified that one part of the contribution of the patent lay in the software which processes the multi-touch input, and found that this was plainly excluded subject matter.The claimed invention also had the advantage that it made it easier to write software for the device, but this was also excluded subject matter.

The judge also rejected an argument that the claimed technical effect resulted in the computer working in a new way, by presenting a new API to the developer in which touch events are sent selectively. He decided that the argument was not correct as the computer was not working in a new way, and there was merely a redistribution of the data processing within the device. The judge also found no evidence of an increase of speed or reliability of the computer. Therefore Floyd J concluded that the claimed invention was not patentable because it is a computer program as such.

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