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rogram would be granted software protection. Furthermore, despite the issues of novelty and inventive step which also factor in the debate on software patent protection, the centre of the uncertainty seems to lie in the issue as to whether computer programs, “as a class, should even be susceptible to patent protection in the first instance” (Plotkin 2006).

The current US and EPO position acknowledges in principle the concept of software being a patentable subject. Nevertheless, there are no clear, objective definitions of the conditions for such protection and there is no consistent approach to discerning whether any particular claim for patent protection will be successful. If we consider the cost of patent applications, this leaves innovators in a situation where only those with the funds and backing of established companies would be able to test out a patent application, which contradicts the purpose of patent law as a means to encourage innovation. Patent applications are expensive in any event however the lack of any meaningful guidance at the outset proves a deterrent, leaving software developers reliant on the inadequate protection and exposure of copyright protection.

Although both the “technical effect” and “practical utility” measures are in line with the concept of inventive step and industrial use requisites for patentability and exclude by their very nature abstract ideas; in leaving it open for judicial bodies to interpret the grey area leads to ad hoc decisions on a case by case basis, perpetuating the uncertainty.

There is still no answer to the obvious question of what actually constitutes “technical effect” and “practical utility”. Herein lies the inherent difficulty of legislating for software within the ambit of patent law. Every computer programme in use on a computer arguably produces a “technical effect” in a sense (Stobbs 2000). For example, a programme causes the computer to store, modify and transmit signals. However, if the sole fact of transmitting electric signals internally in the computer by execution of the program was in itself sufficient to constitute technical effect, this would lead to the undesirable result of every computer program being granted a patent (Stobbs 2000).

It was hoped that the position regarding patentability of software would have been clarified (from the European perspective at least) through the implementation of the European Union (EU) Directive on the Patentability of Computer Implemented Inventions. The objective of the draft directive was to harmonise the approach of various EU national courts.

The Directive provided that in order for software to be protected by patents, the software had to make a technical contribution, which was further defined as contribution to the state of art in a technical field which is not obvious to a persons guild in the art. Accordingly, the approach was that the software can only be patentable when used as part of process as part of a system.

Although welcome in an attempt to harmonise laws throughout EU member states, the Directive still failed to address the issue of what factors would constitute inventive step for the purpose of patent protection (Plotkin 2004). In any event, the European Parliament rejected the Directive, with the current future of the Directive or similar provisions unclear. With the future of the Directive in tatters, the English Court of