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HTC v Apple: not all computer programs are excluded after all

20th May 2013

In its decision of 3rd May 2013, (2013 EWCA Civ 451) the UK Court of Appeal has found that Apple’s European Patent EP 2098948B, relating to a “Touch Event Model” does not relate to an excluded computer program as such, and so should not therefore have been found invalid on that ground in the first instance proceedings of the UK High Court. This means that precisely none of Apple’s four European patents, which were the subject of last summer’s battle with HTC the Taiwanese manufacturer of mobile phones, were deemed by the UK Courts to be invalid as non-patentable computer programs. The case serves to demonstrate once again that UK Courts are often closer than is thought to the European Patent Office (EPO) position when determining what kind of software may enjoy patent protection.


In the summer of 2012, HTC applied for revocation of four of Apple’s European patents relating to computer software used in the control of their ever popular iPhone. In the first instance, Apple countersued for infringement, but ultimately took a bruising from the UK High Court, who decided that the claims of their patents were either not infringed, or for various reasons were invalid. Having said that, even at first instance, only one of the patents, the Touch Event Model patent was found invalid on the ground that it related to an excluded computer program.

Under European Patent law and UK Patent law, inventions that relate to computer programs that do not make a technical contribution (somehow improving the operation of the computer itself) are deemed not to be patentable.

HTC and Apple later settled the infringement part of the court hearing, but for two of the patents, Apple appealed the decision on validity to the Court of Appeal. The court cases are part of ongoing litigation in Europe, and it is therefore in Apple’s interests to try and obtain a favourable opinion from the UK Court on validity. HTC were not part of the appeal, meaning that the Comptroller of the UK Intellectual Property Office (UKIPO) appeared in their place, with the remit of preventing harm to the public interest that would be caused if non valid patents were ultimately restored.

The Patents

The four patents at issue in the first instance proceedings were: EP 2098948B, known as the ‘Multi-Touch patent’; EP 1964022B, the ‘Slide-To-Unlock’ patent; EP 2059868B, the ‘Photo Bounce Back’ patent; and EP 1168859B, the Multi-Language Text patent.

Both, the ‘Slide-To-Unlock’ and the ‘Photo Bounce Back’ patent were found not to relate to an excluded subject matter, as the computer software that was the subject of the claimed invention provided improved operation of the device, namely more feedback and control via the user interface. Similarly, the Multi-Language Text patent, by specifying how multilingual alphabets are stored in memory and allowing the user to select the correct characters for composing an SMS text message provided a real world benefit in a communication system.

EP 2098948B: The Multi Touch Patent

The invention in this patent related to the control of touch sensitive screens capable of responding to more than one touch at a time. Such screens are found to be more difficult to operate because, once there is a possibility of two user touch inputs being received at the same time, there is a risk of conflict between the apparent meaning of those inputs. In other words, if a user touches a play and a delete button simultaneously, what should the operating system or the application do with a highlighted music file?

The invention was concerned with how different regions of the screen, called ‘views’ and corresponding to control buttons, were required to interpret multiple key presses from a user. The invention allowed each view within a window to be controlled using flags, a first flag setting the possibility of receiving a multi touch input (in comparison to a single touch input), and a further flag designating a view as exclusive or non-exclusive and thereby controlling whether other views were allowed to receive inputs at the same time as the particular view in question was also receiving a touch input. These touch event handling flags were provided at the operating system level of the software within the device, meaning that conflicting touch events would be filtered out at that level and not passed up to higher software levels, such as applications provided by Apple or third parties.

The judge at first instance had held the contribution made by the control software lay solely in the improvement to the software itself, and not as an improvement in the operation of the computer device on which the software was running. The only contribution identified was an improved ease for application programmers to create applications, as they would no longer have to deal with receiving conflicting inputs at the application level. Ease of writing software was not however considered to be a relevant technical effect indicating patentability.

The Court of Appeal however argued that:

“the practical benefit of the invention is that it presents a new and improved interface to application programmers, […] and makes it easier for them to write application software for the multi touch device. The device, is in a real practical sense, an improved device”.

In reaching this decision, the Court of Appeal endorsed the view that the fourth signposts of patentability set out in AT & T Knowledge Ventures LP’s Patent Application “whether there is an increase in the speed or the reliability of the computer”, is perhaps better phrased less restrictively as “whether a program makes a computer a better computer in the sense of running more efficiently and effectively as a computer” (emphasis added). The UK Court also mentioned that the contribution made by the invention in this case was similar to that identified in the EPO Technical Board of Appeal decisions in T 06/83 “Data processing network” (IBM Corporation) and Case T 115/85 “Computer-related invention” (IBM Corporation).

Although the UK courts and the EPO employ different tests for what computer programs are considered to be patentable, this case demonstrates how the test applied by the UK courts does now often seem to be provide the same or similar results. This was not always the case. It also demonstrates how software can be protected through patents providing it is concerned with matters of efficient and effective control.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Nick Reeve
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Would you like to know more? You can talk to Nick Reeve who will be able to help. Call +44 (0)20 7242 0901


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