First-hand insights into software patents in Europe and beyond
There is nothing more relaxing on a Sunday afternoon than browsing the EPO case law database. To my surprise though, there are no (as in absolutely 0) hits for “blockchain”, i.e. it is not mentioned in any board of appeal decision. Ok, blockchain is a relatively young technology (at least from a patent law perspective) and appeal cases take a couple of years. So I did some more research: Google...
“Unsearched subject-matter” objections seem to be trending at the EPO these days. This means that a claim amendment taken from the description is not admitted by the examiner because the amended feature was not covered by the search for prior art. However, the EPO rules say that the search has to be done based on the claims, but with a view to the description and has to also cover features in the...
When your patent application faces an oral hearing at the end of the examination procedure, there is a subtle difference between the EPO and the GPTO: GPTO: the hearing is handled by a single examiner (the same who also handled the written procedure) EPO: the hearing is handled by a panel of three examiners (the primary examiner in charge of the written procedure and two further examiners) So if...
In times of the IoT, cloud and XaaS, most software products are geographically distributed, oftentimes even across countries. Make sure your software patent claims reflect this. Don’t mix up functionality of different entities in the same claim. If you do, your claim might never be directly infringed because no single infringer realizes all claim elements, or realizes some of the claim...
Did you know that means-plus-function patent claims provide the broadest scope in Europe, because they are interpreted as covering anything that can perform the function? This is quite useful in software patents where it often does not make sense to limit the inventive functionality to a specific hardware implementation. The US is a completely different story though: There, means-plus-function...
I was talking about the first hurdle to software patentability in my previous post (technical character) and how it can be easily overcome. When it comes to software patents in Europe, the real challenge is the second hurdle: the non-obvious technical contribution. When a patent claim includes a mix of technical and non-technical features, only the technical features enter into the examination of...
I’m happy to see that my recent LinkedIn post on whether software is patent-eligible at the EPO got 1,200 views in two days! So let’s take a closer look at how the EPO deals with software patent inventions: The European Patent Convention (EPC) sets two hurdles on the way to a European patent: An absolute hurdle stating that the invention has to be an “invention” in the sense of Art...
3D printing is one of the hottest topics in tech right now and will probably revolutionize the manufacturing sector as we know it today. But what if your patents only include claims for the end product and the classic manufacturing method? Someone offering a template file for 3D-printing the product will probably not infringe these claims. Have you ever considered something like: “A...
*** This post is regularly updated. Last update: 5 September 2018 *** Does the European Patent Office grant software patent applications? The short answer is: Yes, but it depends on what the software actually does. On the other hand, “is software patentable?” is really the wrong question. Patents are granted for inventions, and it should only be a secondary question how the invention...
This examination appeal concerns a system for caching information retrieved from a hardware security token, i.e. a smart card or any other tamper-resistant hardware device used to store digital credentials, cryptographic keys or the like. Since it was not even questioned that this is technical subject-matter, the decision is quite straight-forward and “only” deals with inventive step.