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Software Patents

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Jonathan Agmon

on 11 February 2014

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Transcript of Software Patents

PATENTABILITY OF
What is a Computer Software Patent?
A long, long time ago...
Patentability
Conclusion
A patent on “novel” software inventions
before software patents...
Computer Software
or what the European Patent Office calls computer-implemented inventions (CII). (wikipedia)
"A patent on any performance of a computer realized by means of a computer program" (Foundation for a Free Information Infrastructure...or just FFII).
Apple’s development of GUIs for the Mac spurs development from other companies.
Ethernet is an open protocol, which helps bring about development of network technologies in the 90s.
Xerox didn’t protect or market their innovations, so they lost out.
United States
Europe
35 U.S.C. §101
“Whoever invents or discovers any new and useful
(1) process (method),
(2) machine,
(3) manufacture, or
(4) composition of matter, or
(5) any new and useful improvement thereof,
may obtain a patent therefor, subject to the conditions and requirements of this title”. (Patent Act 1952)
Exceptions:
(1) laws of nature,
(2) natural phenomenon,
(3) abstract idea
European Patent Convention (EPC) Art. 52(1)
European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
European Patent Convention (EPC) Art. 52(2)(c)
The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(c) schemes, rules and method for performing mental acts, playing games or doing business, and program for computers;
Technical Character
(1) relate to a technical field;
(EPO Guidelines, Rule 42(1)(a))
The invention must
(2) be concerned with a technical problem;
(EPO Guidelines, Rule 42(1)(c))
(3) have technical features in terms of which the matter for which protection is sought can be defined in the claim.
(EPO Guidelines, Rule 43(1))
Note!
Computer software may be
patentable if it has a
technical character.
CLS Bank v. Alice Corp.
Fed. Cir. 2013 (en banc)
Alice's patents:
US5,970,479
US6,912,510
US7,149,720
Background
US7,725,375
Is it patentable?
Judge Lourie's five member concurring decision provided a three prong analysis:
The Present
Judge Lourie
1. Do the claims fall within one of the four categories of patent eligible subject matter, i.e. does it comply with Section 101?
2. Identifying the abstract idea that may be at risk of preemption
3. determine whether the remainder of the claim contains "additional substantive limitations that narrow, confine, or otherwise tie down the claim so that... it does not cover the full abstract idea itself."
Method claims
The claim "lacks any express language to define the computer's participation."
Aside from the third party affiliation the limitations do not add substance to the claims.
As for the process...
computers do not make a difference.
"Unless the claims require a computer to perform operations that are merely accelerated calculations, a computer does not itself confer patent eligibility."
System claims
Recitation of hardware such as:
"a data storage unit"
"a computer"
are insufficient to rescue the claims.
because...
"none of the recited hardware offers a meaningful limitation beyond general linking
'the use of the [method] to a particular technology environment,' that is implemented via computers."
Conclusion
Invalidation of Apple's European Patent No. EP1964022B1 - the Slide to Unlock patent
The
GUI patent
relates to Apple's user interface that employ touch sensitive displays, specifically the slide to unlock
Motorola and Samsung challenge EP1964022B1 validity in Germany's Federal Courts
On 4 April 2013, the German Federal Patent Court decided:
The features of the patent were designed to make the operation through graphical measures more convenient and even more vivid for the user.
No technical problem was solved by the patent subject matter
German Federal Patent Court website
http://www.bundespatentgericht.de/cms/
Fed. Cir. 2013 (en banc)
Fed. Cir. 2013 (en banc)
Fed. Cir. 2013 (en banc)
Chris Schadl - Patent Presentation
What is computer software
Example of computer software patent types:
Graphic User Interface (GUI)
Applications
Communications
Data Structures
The world with Software Patents
Qualcomm
(...as an example)
Qualcomm's patent portfolio contains over 13,000 patents in the U.S. only.
Most of Qualcomm's patents are licensed to entities, such as:
The leading patent holder in advanced 3G mobile technologies
...as well as patents on 4G
Any set of machine-readable instructions
that directs a computer's processor
to perform specific operations.
Two general categories
System
Application
A patent cannot protect an abstract idea
Simply mentioning of computer hardware, which is required for running the computer software, does not make the computer software patentable
Computer software must do something that cannot otherwise be done without the computer
Conclusion
Algorithms
Mere algorithms without a practical concept are usually not patentable
Manipulations of abstract concepts, numbers, or signals does not necessarily constitute patentable subject matter
Practical application may be patentable
Example:
Application of a simple feedback algorithm to aid in the curing of synthetic rubber.
Diamond v. Diehr, 450 U.S. 175 (1981).
Alice's patents disclose using computer software to implement methods for reducing risk in trading through a third party to eliminate settlement risk
The German court found no technical character in patent claims.
have a technical character.
The subject matter must
applicable
be innovative
(d) presentation of information
be in a field of technology
Full transcript