Symbian Ltd v Comptroller General of Patents
| Jurisdiction | England & Wales |
| Judge | Mr Justice Patten |
| Judgment Date | 18 March 2008 |
| Neutral Citation | [2008] EWHC 518 (Pat) |
| Docket Number | Case No: CH 2007 APP 0549 |
| Court | Chancery Division (Patents Court) |
| Date | 18 March 2008 |
[2008] EWHC 518 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF THE PATENTS ACT 1977
AND
IN THE MATTER OF UK PATENT APPLICATION NO. GB 0325145.1
IN THE NAME OF SYMBIAN LIMITED
AND
IN THE MATTER OF AN APPEAL FROM THE DECISION
OF THE COMPTROLLER-GENERAL OF PATENTS DATED 30 JULY 2007
Mr Justice Patten
Case No: CH 2007 APP 0549
Mr Richard Davis (instructed by Withers & Rogers) for the Appellant
Miss Charlotte May (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 12 and 13th December 2007
Introduction
This is an appeal by Symbian Limited (“Symbian”) against the decision of the Comptroller General of Patents (dated 30 July 2007) refusing UK Patent Application No. GB 0325145.1 on the ground that the invention is excluded from patentability under s. 1(2) of the Patents Act 1977 (“the 1977 Act”). The Hearing Officer (Mrs S.E. Chalmers) confirmed the objection to patentability raised by the examiner which was that each of the claims related to a program for a computer and could not be saved by amendment.
If right the decision is yet another illustration of the sharp divide which exists between the United Kingdom Intellectual Property Office (“UKIPO”) and the European Patent Office (“EPO”) about how to approach claims which are said to be prohibited by Art. 52 of the European Patent Convention (“EPC”). I say that because on 5 September 2007 the Examining Division of the EPO informed Symbian that it intended to grant a European patent in respect of the same claims subject to one amendment to a software claim which I will come to later.
The inventions
Most modern computer operating systems embody a dynamic link library (DLL). The DLL is a collection of small programs or files, any one of which can be called up as required by an executable program (EXE) running on the computer at the relevant time. DLL files are used to perform a variety of functions. A common example is allowing the EXE program to communicate with a specific device such as a printer. But they can also be used to perform routine management functions required by the EXE program. Examples given in the evidence and the specification include identifying free space on the hard drive, saving data to physical memory, the creation or destruction of an object within a process and causing a device to perform a function such as emitting an alarm sound. Once the relevant DLL file has been called by the EXE program it can then be run within that program so as to execute the particular function required.
DLL files have a number of advantages over some forms of static linking. In order to operate they do not require to be loaded into the computer's random access memory (RAM) as part of the EXE program thereby saving space in RAM. When a DLL file is required in order to perform a particular function it is simply loaded into the virtual address part of the process using it and then unloaded when the process terminates. Because the functionality provided by a particular DLL file is available to any number of programs which may require to use it the computer also needs to store only a single copy of the DLL in physical memory.
The other significant advantage of using a DLL module is that it can be modified to accommodate and support displays or functions that were not available when the application programme was originally supplied and loaded, but are subsequently added on. So, for example, the maker of a mobile phone may wish to provide a hardware specific function for a particular model of phone or a service provider to update the instrument's functionality by providing it with a satellite communication facility. Changes of this kind can be implemented by the modification of the DLL without re-compiling and re-linking existing applications provided that the calling conventions and other information supplied by the DLL which enables the EXE program to link with the DLL files is not changed.
According to the specification the invention with which this appeal is concerned relates to
“ 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. ”
It therefore has an application to a wide range of electrical devices including any form of computer, various forms of cameras and communication devices such as mobile and smart phones and other products which combine communications, image recording and computer functionality within a single device.
As explained earlier, the DLL contains a number of functions and modules which may be common to a number of different software and hardware operations available to the user of the device. A function stored in the DLL can be activated by means of a call from the application requiring the particular functionality. The effective management of this process is necessary for the efficient operation of the computer because application programs each require functionality for their own purposes and are therefore in competition with each other to use the resources of the computer in order to perform the specific function which the owner of the device has accessed.
Each file in the DLL occupies a particular position or ordinal. There are essentially two ways in which an application can call for a particular file and link to it. The first is by reference to the ordinal number (link-by-ordinal); the second is by reference to the name (link-by-name). Both are of course known in the prior art.
Under the link-by-name system a call to the function by the application program involves its name being looked up in a table which lists the assigned function name with its respective ordinal number. The ordinal number is then accessed by the application seeking to utilise that function. In this system it is possible to modify application code without regard to the order of functions in the DLL. Although the look-up table will need to correctly associate DLL files with their name and ordinal number, the location of the file in the DLL will be unimportant.
By contrast, the link-by-ordinal number system is faster and requires less processing power and memory. Names are longer in comparison to ordinals and require additional code for their definition. Moreover, ordinal linking does not require a name ordinal look-up table to be stored on the device thereby saving memory and reduces the amount of processing power used in the look-up operation. Ordinal linking would therefore be the preferred method in many DLL based operating systems particularly those for use in smart phones which have restricted physical resources. It is, however, more difficult to administer because the application code has to include the correct location in the DLL of the functions to be accessed. Any changes to the DLL can affect the application code and impede the access to the DLL file which the application is seeking. Ultimately, this can lead to the wrong function being allocated and to the failure of the program.
The link-by-ordinal system, although faster and more efficient is therefore more vulnerable to modifications of the DLL. As mentioned earlier, these commonly occur when there are updates to the functionality of the device.
According to the specification the invention seeks to overcome these problems and to optimise the use of an ordinal number linking system in the DLL by providing an interface which contains suitable mapping between the functions and their ordinals within the DLL thereby eliminating the possibility of malfunction caused by a change in the ordinal position of a particular DLL file due to the modification of the DLL library by the addition of a new DLL file.
The invention involves the division of the DLL into two sections: one containing fixed functions whose ordinals cannot be changed; the other containing functions which can be modified or moved by third party additions to the functionality of the device. It is described in the specification as follows:
“….
According to a first aspect of, the present invention there is provided a method of operating a computing device having an operating system and a dynamic link library containing a plurality of functions accessible by an executable program, each function in the dynamic link library being associated with an ordinal number, the method comprising: providing the dynamic link library as a first part and an extension part, the first part and the extension part each containing one or more of the plurality of functions; causing the executable program to link to functions in the first part directly by means of the associated ordinal numbers; and causing the executable program to link to functions in the extension part indirectly via a further library containing additional functions.
….”
The methodology is illustrated in diagrammatic form by Figure 4 from the specification.
The Claims
The claims presently on file include 17 main claims and two sets of alternative claims. The set of main claims is addressed towards the general invention and includes three independent claims. Claim 1 reads:
“A method of operating a computing device having an operating system and a dynamic link library containing a plurality of functions accessible by an executable program, each function in the dynamic link library being associated with an ordinal number, the method comprising:
Providing the dynamic link library as a first part and an extension part each containing one or more of the plurality of functions;
Causing the executable program to link to functions in the first part directly by means of the associated ordinal...
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