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PowerPoint Presentation

Intellectual Property Law
Patentability of Computer Implemented Inventions

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SOFTWARE ‘DOES’ THINGS

IP Protection for Software

COPYRIGHT LAW: FOR CREATIVE EXPRESSION, BUT NOT FOR WHAT SOFTWARE DOES (FUNCTIONS, METHODS)

PATENT LAW: IF WHAT SOFTWARE DOES – IS AN INVENTION (in the legal sense)

TRADE SECRET: FOR BOTH EXPRESSION AND FUNCTIONS
(but pros and cons)

Patents: source of competitive advantage

Patents provide very strong IP protection for 20 years – first mover competitive advantage!

What the software ‘does’ must qualify as an invention

You should be able to

– explain when what the software ‘does’ will be considered a patentable invention

define a ‘technical solution’
define ‘non-obviousness’ (inventive step)

Learning Objective for this session

THE MEANING OF A PATENTABLE INVENTION

Not for METHODS/ PROCESSES

SOFTWARE FITS THIS BOX

WHAT IS PATENTABLE?
(A 2 PL: inventions, utility models and designs

Inventions mean new technical solutions proposed for a product, a process or the improvement thereof.

Utility models mean new technical solutions proposed for the shape and structure of a product, or the combination thereof, which are fit for practical use.

Designs mean, with respect to a product, new designs of the shape, pattern, or the combination thereof, or the combination of the color with shape and pattern, which are rich in an aesthetic appeal and are fit for industrial application.

SYSTEMS AND METHODS FOR TRAINING MACHINE MODELS WITH AUGMENTED DATA

MOTOR AND CONTROL DEVICE THEREFOR

Patent Law declares what is

PATENTABLE

NOT PATENTABLE

INVENTIONS
‘new technical solution’

– SCIENTIFIC DISCOVERIES
– RULES AND METHODS OF INTELLECTUAL ACTIVITIES

scientific discoveries;
rules and methods for intellectual activities;
methods for the diagnosis or treatment of diseases;
animal or plant varieties;
substances obtained by means of nuclear transformation; and
designs that are mainly used for marking the pattern, color or the combination of the two of prints.
Article 25 Patent rights shall not be granted for any of the following
EXCLUDED SUBJECT MATTER : abstract/ non-technical

Patent Law

PATENTABLE

NOT PATENTABLE

INVENTIONS
technical solution’

SCIENTIFIC DISCOVERIES
– RULES AND METHODS OF INTELLECTUAL ACTIVITIES

CPO Guidelines classify as ‘intellectual activities’
Mathematical method
Business methods
Computer programs

To be patentable, any invention must pass
2 tests or hurdles

1] SUBJECT MATTER ELIGIBILITY
must not CLAIM ANY excluded subject matter ‘per se’

2] PATENTABILITY
must CLAIM a technical solution
(Novelty & Creativity)
NEW & NON-OBVIOUS

EXAMPLE 1:
A method for selling a product, including:

offering a product for sale within a predetermined time limit;

accepting only a first bid for the product from each of a plurality of potential customers, wherein the bid from each potential customer is kept secret from other customers;

after expiry of the predetermined period, selling the product to the potential customer with the highest bid.

DOES THE METHOD CLAIM IN EXAMPLE 1 PASS TEST 1?
WHY OR WHY NOT?
https://www.menti.com/y6xn77gaaz

e.g. business method ‘per se’

TEST 1: CPO Guidelines:

Subject matter eligibility –
EXCLUDED CLAIMS
’rule or method for mental activity’

To pass this test, the claimed invention must recite
‘technical features’

TEST 1: CPO Guidelines:

Subject matter eligibility –
EXCLUDED CLAIMS
’rule or method for mental activity’

PASSES TEST 1: ELIGIBILITY: TECHNICAL FEATURES (COMPUTER IMPLEMENTED

EXAMPLE 2: ADD COMPUTER
A computer-implemented method for selling a product, including:

offering a product for sale within a predetermined time limit;

accepting only a first bid for the product from each of a plurality of potential customers, wherein the bid from each potential customer is kept secret from other customers;

after expiry of the predetermined period, selling the product to the potential customer with the highest bid.

2020 Guidelines – Easy test to pass A. 25

’rule or method for mental activity
WHEN COMPUTER IMPLEMENTED
pass the first subject matter eligibility test

Business method + computer implementation = technical feature

Algorithms – ML, DL, NN, Blockchain etc + computer implementation = technical feature

TEST 2: PATENTABILITY

CLAIM MUST BE TO A
New and non-obvious
technical solution
of practical use

TEST 2: PATENTABILITY

A. 26 PL: INVENTION TO HAVE NOVELTY AND ‘CREATIVITY’

‘Creativity’

NON OBVIOUS TO A PERSON SKILLED IN THE ART

2020 Guidelines
The real issue – A. 2(2) – is it a non-obvious technical solution to a technical problem using the laws of nature

technical solution making a technical contribution to prior art

judged by all features

Non- obvious
– non obvious technical solution arising from technical and non-technical features
(separate technical and non-technical features, do the non-technical features interact with the technical features to make a technical contribution?

CPO Guidelines: to be considered a

New and non-obvious technical solution
– The invention must

Have technical features

Make a technical contribution – use technical means (laws of nature) to solve a technical problem to achieve a technical effect (all technical features will be considered as a whole)

EXAMPLE 2: TECHNICAL FEATURES
A computer-implemented method for selling a product, including:

offering a product for sale within a predetermined time limit;
accepting only a first bid for the product from each of a plurality of potential customers, wherein the bid from each potential customer is kept secret from other customers;
after expiry of the predetermined period, selling the product to the potential customer with the highest bid.

DOES THE METHOD CLAIM IN EXAMPLE 2 PASS TEST 2?
WHY OR WHY NOT?
https://www.menti.com/y6xn77gaaz

Would be obvious to implement the struck-through business method steps for the purpose of assessing inventive step on a computer, at the effective filing date of the patent application.

Since it has for many years been known to implement business methods on computers, the claim is not a ‘new technical solution’

Example 2A: Add computer
Here we have the same claim as in example 2, further amended to interweave a number of generic computer-based features throughout the claim:

A computer-implemented method for selling a product, including, at a selling server:
offering a product for sale within a predetermined time limit via a publicly accessible webpage;
accepting only a first bid for the product from each of a plurality of potential customers who access the webpage from a respective terminal, wherein the bid from each potential customer is kept secret from other customers by encrypting the bid at the terminal of the potential customer;
after expiry of the predetermined period, decrypting the bids, and selling the product to the potential customer with the highest bid via the publicly accessible webpage.

A computer-implemented method for selling a product, including, at a selling server:
offering a product for sale within a predetermined time limit via a publicly accessible webpage;
accepting only a first bid for the product from each of a plurality of potential customers who access the webpage from a respective terminal, wherein the bid from each potential customer is kept secret from other customers by encrypting the bid at the terminal of the potential customer;
after expiry of the predetermined period, decrypting the bids, and selling the product to the potential customer with the highest bid via the publicly accessible webpage.
SEPARATE NON-TECH AND TECH FEATURES

TECHNICAL FEATURES: ‘GENERIC’

EXAMPLE 3: COMPUTER IMPLEMENTED FEATURES
A computer-implemented method for selling a product, including, at a selling server:

offering a product for sale within a predetermined time limit via a publicly accessible webpage;
accepting only a first bid for the product from each of a plurality of potential customers who access the webpage from a respective terminal, wherein the bid from each potential customer is kept secret from other customers by encrypting the bid using a public key at the terminal of the potential customer, wherein the public key is part of a public-private key pair issued by a key manager server controlled independently of the selling server;
after expiry of the predetermined period, receiving a private key that is part of the public-private key pair from the key manager server, using the private key to decrypt the bids, and selling the product to the potential customer with the highest bid via the publicly accessible webpage.

DOES THE METHOD CLAIM IN EXAMPLE 3 PASS TEST 2?

NEW TECHNICAL SOLUTION IN EXAMPLE 3?
Example 3 has non-generic features which implement a specific encryption methodology

IF this encryption methodology is not (entirely) conventional, and could provide a useful technical effect (improving the security of the auction method), the next question is

Whether the specific encryption methodology would be obvious to a skilled person looking to implement the business method steps for the purpose of assessing inventive step) on a computer system, at the effective filing date of the patent application[

FEATURES CONSIDERED TECHNICAL
Features relating to physical objects
E.g. control of industrial hardware
But even the act of writing with pen and paper is seen as technical

In relation to computers:
Features relating to computer hardware
Features relating to better handling of data (saving memory, increasing speed, improved reliability)
Features relating to secure handling of data (e.g. encryption)
Features relating to improved outputs (e.g. image/video enhancement, more accurate estimates of a given parameter)

TECHNICAL CONTRIBUTION – ‘signposts’
© Withers & Rogers LLP

A computer program is patentable, if it  solves a technical problem in a non-obvious way

See EXAMPLE CII document
Further Examples

To Example1

Pedestrian simulation: non-technical

To Example 2

Selective haptic feedback: technical

https://www.bardehle.com/europeansoftwarepatents/knowledge-base/ (EU related, EU assessment and CPO assessment are similar)

https://www.epo.org/law-practice/case-law-appeals/recent/t000641ep1.html (COMVIK decision – mixed type inventions}

https://www.mewburn.com/news-insights/software-inventions-at-the-european-patent-office-an-in-depth-study

CNIPA GUIDELINES: Please check on CNIPA website

Further Resources

Further Resources

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