Thursday, January 11, 2007

Super Mario Software Patent denied

IPKat reports on a recent UK Patent Office decision to deny patent protection to a software technique Nintendo use in the Super Mario Kart game used to get crashed cars quickly back on the track.

"The decision related to refusal of Nintendo's application under section 1(2) of the UK Patents Act 1977. The examiner had maintained an objection regarding s1(2)(c), i.e. that the contribution lay solely in the field of computer programs, and consequently refused the application. Referring to Aerotel/Macrossan (previously reported in the IPKat here), the Hearing Officer applied the now approved four step test, noting that the decision must be treated as a definitive statement of how the law on patentable subject matter is now to be applied in the UK, and that it should not be necessary to refer back to previous UK or EPO case law regarding the issue.

After construing the claims, the Hearing Officer considered the contribution to be the process of setting a kart upright and facing in the same direction as it was prior to crashing. This was seen to be clearly wholly within the area of a computer program, but not itself a scheme, method or rule for playing a game. Since the third step question was answered in the affirmative, it was not seen to be necessary to consider the fourth step, i.e. whether the contribution was "technical" in nature. The application was therefore refused.

The IPKat sees much sense in this decision, but wonders how it can be squared with the previous decisions of Sun Microsystems and ARM, both of which also related to ways of getting computer programs to do clever things purely implemented in software, but which were related to much more serious-sounding issues of bytecodes and compilers rather than silly racing karts."

If the EU Council of Ministers had succeeded with just one of their many attempts to sneak the proposed software patents directive through via fisheries and other unrelated Council meetings, (doumented in great detail by Florian Mueller in his book) then Nintendo would probably now be the proud owners of a UK software patent for uprighting cars/vehicles in computer games.

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