By Dennis Crouch
HTC v. Apple,  EWCA Civ 451 (Court of Appeals of England and Wales 2013)
In a Judgment by Lord Justice Kitchen, the English court of appeals has offered a decision in favor of Apple's European Patents covering its multi-touch keyboard. See European Patent Nos. 2 098 948 and 1 964 022.
The patents cover technical data-flow solutions to for multi-touch keyboard devices and the lower court held that those claims lacked patent eligibility under Article 52 (2)(c) of the European Patent Convention which indicates that "[t]he following in particular shall not be regarded as inventions ... programs for computers." On appeal, the court reversed that decision -- finding that the invention solves a sufficiently technical problem and therefore is patent eligible:
The problem which the patent addresses, namely how to deal with multiple simultaneous touches on one of the new multi-touch devices, is essentially technical, just as were the problems of how to communicate more effectively between programs and files held in different processors within a known network which lay at the heart of the decision in IBM Corporation/Data processing network, and how to provide a visual indication about events occurring in the input/output device of a text processor which lay at the heart of the decision in IBM Corporation/Computer related invention.
In this process, the court focused on what the invention contributed to the art as a "matter of practical reality" rather than focusing on the invention's relation to computer software. The court went on to hold that a patentable contribution does not become unpatentable simply because a computer program is used to implement that contribution.
In the end, Apple's claim 2 of its '948 patent still stands (claim 1 was obvious as were claims 5 and 17 of the '022 patent). The '948 claims at issue read as follows:
1. A method for handling touch events at a multi-touch device, comprising:
displaying one or more views;
executing one or more software elements, each software element being associated with a particular view;
associating a multi-touch flag or an exclusive touch flag with each view;
receiving one or more touches at the one or more views; and
selectively sending one or more touch events, each touch event describing a received touch, to one or more of the software elements associated with the one or more views at which a touch was received based on the values of the multi-touch and exclusive touch flags.
2. The method of claim 1, further comprising:
if a multi-touch flag is associated with a particular view, allowing other touch events contemporaneous with a touch event received at the particular view to be sent to software elements associated with the other views.
In his opinion, Lord Justice Lewison described his disappointment in the lack of clarity in the law.
It is, to me at least, regrettable that because these apparently simple words have no clear meaning both our courts and the Technical Boards of Appeal at the EPO have stopped even trying to understand them. However we are so far down that road that "returning were as tedious as go o'er". Instead we are now engaged on a search for a "technical contribution" or a "technical effect". Instead of arguing about what the legislation means, we argue about what the gloss means. We do not even know whether these substitute phrases mean the same thing. . . .
So the upshot is that we now ignore the words "computer program … as such" and instead concentrate on whether there is a technical contribution. It is, if I may say so, a singularly unhelpful test because the interaction between hardware and software in a computer is inherently "technical" in the ordinary sense of the word. If I buy a software package that malfunctions the software house will often offer me "technical support". But that is clearly not enough for the software to qualify as making a "technical contribution".