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Computer-implemented inventions - where are we now?
The EPA define a computer-implemented invention as an invention that uses a computer, computer network or other programmable. To qualify, the invention must also "one or more features are those that the program implemented in whole or in part, by a computer.
Before the European Patent Convention in 1973, the implementation of specific provisions forInventions> computing in general has been left to the courts, EPA, states and national resolve. It was felt that the technology developed, which describe a specific definition of emerging technologies as a patentable invention could potentially reduce or omit. Furthermore, there was a lot of contempt for the treatment of U.S. software patents and distrust for the rental of practice to infiltrate Europe.
Finally, it was thought that the copyright and databasewere sufficient protection for software code, and then the computer programs that could lead to patents, to protect double, which would be contrary to competition rules.
While some countries to grant patents for software, management of patents in Europe requires a candidate to show their invention actually contribute in a technical field.
The European Patent Convention 2000 (as amended), the statutory provision for the granting of European Patents art52 -
(1) "patentable inventions" states that "European patents are granted for inventions in all fields of technology, provided that they are new, involve an inventive step and are industrially applicable." The section then lists several categories of exceptions to Article 52
(2), namely: - (a) discoveries, scientific theories and mathematical methods, (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing businessbusiness and computer programs, and (d) presentations of information. However, there is a clause which is subject to such exclusions are contained in reference, be excluded from patentability, "only the extent to which concerns a European patent application or European patent for the subject matter or activities as such".
Over the years much has been banging his head on what the true meaning of '… as such - especially since the EPAprovided a clear indication of what the words "in relation to computer programs." The only explanation is that the computer to be patentable inventions have technical character action / and a technical problem to solve, in addition to other requirements for patentability. But this simply raises the question of what is or is not technical in nature, and what is or is not a technical problem.
The law is where they hope to findThe answers to these questions. However, EPA has a bit 'inconsistent.
In Vicom / related inventions [1987] The EPA has said that software is necessary to vindicate a technical process, one that is part of a control program (or hardware implemented) are not to be considered when using a computer program such as 'is applied using the program to determine the sequence of stages of the protection forceand that the claim is justified under Article 52 EPC.
Then came Merrill Lynch's Application [1989] show that it must be "some technical advance of the prior art in the form of a new result." Although Vicom said that programs running on a known hardware patents, many applications for these programs were hopelessly inferior.
Fujitsu's Application [1996] was a method for modeling the crystal structures of inorganic compounds for designingThe manipulation of images of known structures, a process that was previously done by connecting pieces of plastic. The examiner determined that the invention falls within the exclusions, nothing but a computer program and a method for performing mental act on the appeal to the Supreme Court was further noted that the invention was "essentially a system or method for performing a mental act, "The Court of Appeal dismissed the appeal which followed then concluded that largeQuestion was whether the invention produces a technical contribution, not when it provided a new tool.
Sun, Great Britain, inventions are patentable, not when they act, are the exclusions of the Patents Act 1977 § 1 (2), which contains provisions similar to those of type 52
Current practice, however, is a "four-step test" which, by the principles in Aerotel / Macrossan case, entering a new automated procedure for the purchase of related documentsnecessary to take on a company. It was a user sitting at a computer and communicate with a remote server, to answer questions. The four stages are:
(1) correctly interpreted the question
(2) Identify the actual contribution;
(3) ask whether it falls solely in excluded subject;
(4) Check whether the actual or alleged contribution is actually technical in nature.
Compared with the approach of the EPA, and in light of cases such as the AstronClinic Ltd (2008], is the practice in question, and even rejected as false, especially since some of the decisions of the United Kingdom were not in determining the technical contribution, yes, in terms of a technical nature. Although some judges tried four step test as in line with the EPO approach to interpret the verdict in Macrossan seems the basic principles of which refuse to lead on previous judgments, such as FujitsuApplication, a ruling that British courts should recommend the guidance from the jurisprudence of the EPO research.
On October 22, 2008, the President of the European Patent Office (EPO), Alison Brimelow, without referral to the Enlarged Board of Appeal (Supreme Court in EPA) to several questions about the patentability of computer-implemented inventions. With applications patent for invention-based experienced the highest growth rate among all patentsCategories European Patent Office (EPO) made in recent years, it will be interesting to see what the response action.