In Symbian's Patent Application , decided on Tuesday, Mr Justice Patten upheld mobile phone and software licensing company Symbian's claim that the UKIPO was wrong to reject its application for a patent on the grounds that it relates to nothing more than a computer program.

Symbian's application claimed "a method of accessing data in a computing device and, in particular to a method of accessing data held in a dynamic link library in the computing device. The present invention also relates to a computing device controlled by the method".

In the ruling, Patten said that he believed that the UKIPO Hearing Officer had taken "too narrow a view" of the technical effect of the invention and "was wrong to exclude it from patentability on the basis that it amounted to no more than a computer program".

The judge also drew attention to the fact that the European Patent Office had granted Symbian a patent less than six weeks after the UK Office had refused its application.

"If [the UKIPO was] right the decision is yet another illustration of the sharp divide which exists between the United Kingdom Intellectual Property Office and the European Patent Office about how to approach claims which are said to be prohibited by Art. 52 of the European Patent Convention," he said.

In a statement, the UKIPO said it believed that when deciding whether this computer implemented invention is patentable, the judge did not apply the so-called Aerotel/Macrossan test, established by the Court of Appeal, in the way intended by the Court of Appeal.

"This in UKIPO's view has created uncertainty about how the Aerotel/Macrossan test should be applied for inventions of this type," the statement said. As a result, the Office will appeal the decision.

Royal Courts of Justice

But Nick Wallin, a patent attorney at Withers & Rogers, who acted for Symbian during the appeal, welcomed the High Court's ruling: "There have been a number of UK High Court decisions recently which ruled that software-related inventions were not patentable quite simply because they were programs for computers. This does not make sense. Before today's ruling I would have been able to patent a new software algorithm that makes my kitchen toaster work better, but not an algorithm which improves how my computer works, despite the fact many people sit and use computers at work all day every day. This ruling now goes some way to help improve this situation."

This is the second High Court setback the UK IP Office has suffered in relation to the question of software patentability this year.

In February, the Office was forced to revise a practice note clarifying its policy after Mr Justice Kitchin said in Astron Clinica and others' Applications that where claims to a method performed by running a suitably programmed computer or to a computer programmed to carry out the method are allowable then, in principle, a claim to the program itself should also be allowable.

The UK Office said yesterday that until the Court of Appeal rules on the case, examiners will follow the practice set out in its Practice Notices issued in November 2006 and February 2008 .

Its statement went on to say that when applying the Macrossan test, examiners "will take account of the Symbian judgment in appropriate cases".