Programming, modelling, and new programming languages are hardly patentable

As in the previous decision, also this decision is rather bad news for software developers who intend to protect their creations with software patents.

Some key takeaway messages:

  • Neither modelling nor programming is, by itself, a technical undertaking
  • Modifications to a programming language that enable the programmer to develop a program with greater ease, speed or accuracy, do not make a technical contribution to the art
  • Even if the technical purpose of a simulation method is “adequately defined” and the claim is limited to that purpose, it is questionable whether this makes a technical contribution to the art

Continue reading Programming, modelling, and new programming languages are hardly patentable

Software Patents Worldwide — Germany chapter hot off the press

As every year, I’ve used the Christmas holidays to update my contribution to Software Patents Worldwide. It’s a comprehensive loose-leaf collection published by Kluwer Law International and provides expert insights and how-to guidance on drafting software patent claims in the world’s key markets. Continue reading Software Patents Worldwide — Germany chapter hot off the press

Why software patent eligibility is not an issue at the EPO — and what the USPTO can learn from this

Talking about software patent eligibility, allow me a quick rant about the flaws of the USPTO‘s infamous “abstract idea” test:

Honestly, I believe the Mayo/Alice two-step test causes much more harm than good: Continue reading Why software patent eligibility is not an issue at the EPO — and what the USPTO can learn from this

Software patents in Europe: It’s all about the technical contribution!

Is software patentable in Europe?

Well, the short answer is “Yes”, but only if it provides a non-obvious technical contribution:

In other words, the invention needs to solve a technical problem in a clever way.

For example, if the software runs

  • more efficiently,
  • more secure,
  • more robust,
  • more scalable, or
  • more user-friendly ,

your software patent is in pretty good shape! (provided that the solution is somewhat “clever”)

On the other hand, if the unique thing about the software product is really in the business idea, and the technical implementation of that idea in software is trivial, you won’t get a software patent in Europe.

Find out more in my article “How to get your software patent allowed in Europe”.

Are you up to date?

Making software quicker is not necessarily patentable

As the skilled reader will know, at the EPO only features which make a technical contribution enter into the examination of inventive step (obviousness) whereas non-technical features are disregarded.

In this decision, the EPO board of appeal had to decide whether a computer program that it is faster than an earlier one makes the required technical contribution.

The board’s answer in a nutshell:

The improved speed of a computer program is not by itself a technical contribution to the art.

In detail, the board held the following:

10. In the board’s view, the argument that a computer program or computer-im­plemented method is inventive because it is faster than an earlier one is on its own insufficient to establish an inventive step. More specifi­cally, the improved speed of a computer program is not by itself a technical contribution to the art.

10.1 By way of illustration, let it be assumed that the method in question is a non-tech­­nical one, for example a mathema­tical method or a method of doing bu­si­ness.

10.2 Under Article 52(2)(a) and (c) and (3) EPC, this method will not be regarded as an invention in the sense of Article 52(1) EPC.

10.3 Any computer program implementing that method will, of necessity, need a particular amount of computing resources, in particular time. This is merely a consequence of the “nor­mal” physical interactions between program (soft­ware) and computer (hardware) (see T 1173/97, OJ EPO 1999, 609; headnote and reasons 6.6, 9.6, 13). According to established jurisprudence of the boards of appeal, the computer program would thus be found not to comply with Article 52(2)(c) and (3) EPC for lack of a “further” technical effect. And because the computing time does not contribute to the technical character of the computer program, it could not support the presence of inventive step of a corresponding computer-implemented method (see T 641/00, OJ EPO 2003, 352; headnote 1).

Accordingly, speeding up the response time of e.g., a software controlling a production plant is patentable, but speeding up a business method is not.

10.4 These findings cannot be changed by a do­cu­ment which discloses an alter­native, earlier non-tech­nical method which takes longer to carry out on a com­puter. In other words, it cannot be argued that a computer program must be regarded as an invention in the sense of Article 52(1) EPC, i.e. as a technical invention, for the sole reason that an earlier computer program happens to exist which solves the same, non-technical problem more slowly (see also T 42/10, reasons 2.12, for a similar conclusion). Otherwise, the ex­clusion of computer-implemented me­thods under Article 52(2) and (3) EPC would become meaningless, because for any given computer program a less efficient one is either known or conceivable. As a consequence, a computer-implemented method cannot be found to show an inventive step for the sole reason that a slower computer-implemented method exists in the prior art.

10.5 Therefore, for a computer-imple­men­ted method or a computer program to be patentable it must be estab­lished that it has a “further” tech­nical effect and solves a technical problem independently of its absolute or relative computing time. Only then, and only if the alleged speed-up affects an established technical effect, can it be argued that the speed-up contributes to a technical effect and thus to inventive step (see again T 641/00, headnote 1).

11. Returning to the claimed invention (see point 9.2), the board accepts that certain kinds of cache may well be accepted as the technical solution to a technical problem. This may be the case, for instance, for a fast page cache in RAM to avoid repeated access to a slow peripheral hard disk.

11.1 However, the claimed “cache” is not such a cache. In fact, little detail of the cache is claimed. For example, the claims cover the possibility that each object stores the values of its dependent properties in place along with a flag indicating their validity, and that the term “cache” is merely a way of referring to the totality of these local property co­pies.

11.2 Thus, the claimed concept of caching does not go beyond the idea of memorising a value that one might need again and its validity, so that the effort involved in obtaining it need not always be repeated. In the board’s view, this idea is obvious from first prin­ciples.

11.3 Moreover, the claimed method of “caching” a value and its validity achieves, if anything, a speed-up of an entirely ab­stract method (see point 5 above) and thus is, as argued above, insufficient to estab­lish that the claimed computer-implemented method solves a technical problem.

12. In summary, the appellant did not convince the board that the claimed invention had any genuinely technical effect over D2. In fact, it also failed to show that the claimed method could be considered to have any “further” technical effect beyond being computer-implemented.

13. Therefore, the board finds that the subject-matter of claim 1 according to the main request lacks inventive step, Article 56 EPC 1973.

Read the whole decision here (T 1370/11 (On-demand property system/MICROSOFT) of 11.3.2016).