How the EPO examines software patents |
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- Опубліковано 22 лип 2024
- Visit the EUROPEAN SOFTWARE PATENTS knowledge base for more:
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▷▷▷ See the slides of this presentation on SlideShare: de.slideshare.net/BARDEHLE/it... ◁◁◁
The European Patent Office will grant a software patent if the invention provides a non-obvious technical contribution to the prior art. More information:
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In this 30-minute talk, patent attorney Bastian Best gives a walkthrough of the European Patent Office's "two hurdle" approach for assessing the patentability of software-related inventions with many practical examples.
Quick navigation:
▶ 2:25 Facts and statistics about the European patent system
▶ 7:38 The "two hurdle" approach for assessing European software patents
▶ 15:15 Five examples for technical and non-technical inventions
This is a recording of a talk given at the 3rd International Conference "PROTECTION OF INTELLECTUAL PROPERTY RIGHTS" in Saint Petersburg, Russia on 11 April 2019.
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The basic patentability requirements for any kind of invention at the European Patent Office, including software-based innovations, are laid down in Art. 52(1) EPC: "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."
The EPC does not include a fixed definition of the term “technology“. For a good reason: Technology constantly evolves and the legal framework should be flexible enough to adapt to new developments. But there is a list of items in Art. 52(2) EPC that are considered not to be inventions in a field of technology. The common denominator of these items is that they are all rather abstract things, i.e. they are in themselves non-technical:
* discoveries, scientific theories and mathematical methods
* aesthetic creations (those are subject to design protection)
* schemes, rules and methods for performing mental acts, playing games or doing business, and * programs for computers
* presentations of information
But to make it even more complicated, these items are only excluded from patentability if they are claimed “as such” according to Art. 52(3) EPC. Over the years, however, the Boards of Appeal of the European Patent Office have created a stable and reliable framework for implementing these complicated legal provisions. The so-called “two hurdle” approach:
1. Patent-eligibility: a single technical feature in the patent claim is enough
2. Inventive step: only the technical features can establish non-obviousness
Unlike in the US, the European Patent Office has made the patent-eligibility hurdle only a very coarse filter. Its purpose it to filter out those inventions that are purely abstract and conceptual, without any involvement of technology whatsoever. In fact, the only thing needed to overcome the first hurdle is a single technical feature in the patent claim. Note that the patent-eligibility hurdle is an absolute hurdle. There is no comparison of the invention with the prior art allowed at this point. As a matter of fact, the (single) technical feature can even be a trivial one.
When assessing inventive step, the EPO examiner will compare the invention to the prior art and identify those novel features which distinguish from the closest prior art. Importantly, from these novel features, only those that contribute to the solution of a technical problem are taken into account in the non-obvious assessment. In other words, inventive step cannot be based on a non-technical delta between the invention and the prior art. Instead, it is only the technical contribution that is looked at.
Control questions for a European software patent application:
1. Does the invention use technical means?
2. Does the invention solve a technical problem, i.e. does it bring about a technical effect / advantage?
3. Is the solution non-obvious in view of the prior art?
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#softwarepatent #patent #software #invention #technology #intellectualproperty
Excellent talk. I would call this an entry point for understanding the technical subject matter issues under the EPC. Can’t thank you more for putting this up there. Wish you had covered the last but one example too on ranking of search results.
Thanks for the talk. Great to see this content on youtube. Sofware patentability is a very unclear issue in my opinion. For example:
- The Board of Appeal considered that clasifying e-mails based on the liking of the recipient is not a technical issue, but what about classifying apples on the same grounds in a packaging plant? I understand that this classification will be made on the colour, size, etc,.. which are tangible objective parameters, but the final reasons are commercial, business-oriented, they are made for the liking of the customer; in the first place, putting all the apples with the same appearence in the same package doesnt solve any technical problem.
On the other side, having your mailbox full of spam is a technical problem (because it has apparent adverse effects on a company performance) which needs a solution (problem-solution approach).
- Also I don't quite understand why the simulation of a circuit current flows is technical under the EPO criteria. They say that presentation of information is not considered a technical contribution. As I see it a simulation of any kind is a presentation of information in the form of flows. If this information had been presented in the form a table, with numbers corresponding to the values of the currents in the circuit, etc, it would have been rejected. Why a simulation (with colour flows, arrows, more realistic or pleasant to the viewer) makes the claim valid compared to other forms of presentation?
Great talk. Where can I access the statistics on the number of Software Patents filed under the EPC each year?
@@bestpatent Thank you
@Bardehle, any update on the last slide, a computer implemented method of simulating pedestrian crowd movement ?
@user-sb3ku5su8o We created a follow-up video on the G 1/19 decision relating to the pedestrian simulation case. You can access is it under ua-cam.com/video/JaHcUIQgEzI/v-deo.html
23:55 Was she complaining that you were talking to fast?
(English is my first language, and I can understand everything you're saying.)
@@bestpatent I hope you do a follow-up video on the method of simulating pedestrian crowd movement.