Until now the Patent Office has relied on an Official Ruling of
1926 when determining game-related patent applications. The Ruling
indicated that games are traditionally patentable, subject to
objections such as lack of novelty.
However, when the question of traditional patentability was
raised in the recent case of Shopalotto.com – concerning a patent
for an online lottery game – the Court expressed surprise that
current practice still relied on the old ruling. According to Mr
Justice Pumfrey, a 1926 Official Ruling could not be a valid guide
to the interpretation of the 1977 Patents Act.
Late last month the Comptroller General of Patents, Designs and
Trade Marks therefore issued a Practice Note confirming that the
Official Ruling will no longer be used in assessing the
patentability of games.
Instead, games-related patent applications will be considered in
the same manner as all other patent applications, by firstly
identifying the advance in the art that is said to be new and
obvious (and capable of industrial application) and then
determining whether it is actually both new and not obvious (and
capable of industrial application) in terms of the 1977 Act.
