The long and winding code - a short history of European software patentability through the lens of pop culture
We're taking you on a journey through the history of software patents in
In our first decade travelling through software patents in
Instalment III: The rise of the further technical effect
That same year, it would seem that this positivity was rubbing off on the EPO too, as they issued the landmark
This decision was so useful because from
"A "further technical effect" is a technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run. The normal physical effects of the execution of a program, e.g. the circulation of electrical currents in the computer, are not in themselves sufficient to confer technical character to a computer program".
This defines what a "further technical effect" is not, so what is one? Helpfully the EPO Guidelines are on hand to help with that too by providing a whole host of useful examples (G-II, 3.6.1). In this section of the EPO's Guidelines it is stated that:
"a computer program which specifies a method of controlling an anti-lock braking system in a car, determining emissions by an X-ray device, compressing video, restoring a distorted digital image, or encrypting electronic communications brings about a further technical effect when it is run on a computer".
These are the clearer cut examples. It goes onto provide arguably more borderline, and arguably therefore more useful, examples such as "computer programs implementing security measures for protecting boot integrity or countermeasures against power analysis attacks", software for "processor load balancing or memory allocation".
In general, showing that a further technical advantage is achieved, whether it be increased processing speed, reduced processing or memory resource, reduced bandwidth, or improved security, is usually a step in the right direction for showing that there is a "further technical effect". Another way to think about this point, is that for there to be a "further technical effect" there needs to be a technological improvement in the real world. Will better mathematics be patentable? No. Will better mathematics for implementing a better pension scheme be patentable? Still no. It is in the real-world, but it is one excluded area (mathematical methods) applied to another (methods for doing business). Will better mathematics for processing images? Maybe. Well, it probably wouldn't be excluded, but don't forget that you have to then show that the invention is also novel and inventive. The same logic is applied by the EPO when dealing with AI inventions. Is better AI patentable? No. Is better AI for image analysis? Maybe, provided it is also novel and inventive.
The
"A computer program product is not excluded from patentability"... "if, when it is run on a computer, it produces a further technical effect which goes beyond the "normal" physical interactions between program (software) and computer (hardware)".
On our journey through European software patent history, it has taken over 20 years from 1977 to 1998 to get to this point, but
By zooming out and looking at the history of software patents in
Next, we're going to see the BIG SPLIT, which breaks up software patent claims... forever!
If you're interested, you can read the decision here: Computer program product/IBM T1173/97.
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