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1 Demonstrating Technical Effect in Software Cases By Keith Beresford.

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2 1 Demonstrating Technical Effect in Software Cases By Keith Beresford

3 2 Today’s Discussion b Why technical effect? b Software inventions cases in general b Software implemented business methods b The Draft EC Directive

4 3 Purpose Purpose “All I want to know is what was in God’s mind when he created the world. The rest is detail.” (Einstein)

5 4 Purpose of Patent System b To encourage new technologies b To encourage improvements in technology b To encourage dissemination of knowledge

6 5 Achieving the Purpose b A bargain between inventor and public b For the inventor: A monopoly for limited timeA monopoly for limited time Covering all ways of implementing the inventionCovering all ways of implementing the invention b For the public: Invention enters public domainInvention enters public domain

7 6 Creating the Bargain b “Letters Patent” = Open Letter b Statute of Monopolies 1623 outlawed most monopoliesoutlawed most monopolies permitted monopolies for new technologypermitted monopolies for new technology b Present Law European Patent ConventionEuropean Patent Convention Patents Act 1977Patents Act 1977

8 7 The Essentials of a Modern Patent Law b Defines what may be patented b Sets out how to obtain a patent b Requires a (published) specification describing invention and implementationdescribing invention and implementation defining the apparatus or process monopolised (the claims)defining the apparatus or process monopolised (the claims) b Defines the rights of the patent owner

9 8 The Nature of the Monopoly b The right to prevent others from defined activities Making, selling or using the product or machineMaking, selling or using the product or machine Importing the product or machineImporting the product or machine Performing the processPerforming the process Supplying items for use in infringementSupplying items for use in infringement

10 9 Patentable Inventions Are Technical b This applies to all fields b It equally applies to software b A software patent specification must therefore explain the technical character of the invention b Technical problem and solution analysis

11 10 The Patentable Daisy b Diesel engines are patentable Novelty: a daisy embossed on the engine casingNovelty: a daisy embossed on the engine casing b Aesthetic effect only unpatentableunpatentable b Technical effect (e.g. improved cooling) patentablepatentable b Technical effect must be disclosed

12 11 Summary b Specification describes invention and implementation b Claims define the apparatus or process monopolised in Europe a combination of “technical features”in Europe a combination of “technical features” b The law defines activities prohibited b Technology described enters public domain when monopoly ends

13 12 Computers and Software b Three Entities: HardwareHardware DataData SoftwareSoftware –control signals determining processes performed on data

14 13 The Essential Components of a Computer b Central processing unit (CPU) processes electrical signals representing dataprocesses electrical signals representing data b Mass storage (e.g. hard disk) stores data and software (programs)stores data and software (programs) b Random access memory (RAM) stores data signals for processing by CPUstores data signals for processing by CPU stores control signals (program) for controlling CPUstores control signals (program) for controlling CPU b Input and output units

15 14 Technical Features in General Structures and Functions b In the mechanical or electrical fields the components of the apparatusthe components of the apparatus the functional interaction between themthe functional interaction between them b In the computer field the components of the apparatusthe components of the apparatus the components of the programthe components of the program the functional interaction between themthe functional interaction between them processes within the computerprocesses within the computer

16 15 Technical Structures in Software Cases b The hardware? The network? b Functional program modules and their location on the network b Tables, pre-stored data, their structure and location on network b Structure of user interface b Data structures received, stored, processed and output

17 16 Technical Functions in Software Cases b The receipt of data b Processes within the computer the generation and flow of commands (control signals)the generation and flow of commands (control signals) the flow and transformation of datathe flow and transformation of data the functional modules called into play and their responses to eventsthe functional modules called into play and their responses to events b The output of data

18 17 Non-technical Features b Human beings b Human activities mental activitymental activity manual activity (as distinct from technical processes taking place as a result of manual activity)manual activity (as distinct from technical processes taking place as a result of manual activity) b Human institutions e.g. a bank a bank pension fundpension fund

19 18 Contents of the Software Patent b The hardware b The pre-stored data, tables etc. b The functional modules of the program b The data input for processing b The steps performed by the functional modules b The processed data output b The benefits achieved

20 19 Claims in a Software Patent b An “apparatus” or “system” claim computer containing the novel softwarecomputer containing the novel software b A “process” claim the process which the program performsthe process which the program performs b A “program” claim storage medium or signal carrying program storage medium or signal carrying program

21 20 Examples Of Patented Software b Image Processing - improved image b Computer Graphics - easier image manipulation b Natural Language Processing - generating internal data structures or commands in response to natural language input b Business Management System - improved screen interface

22 21 More examples b Speech recognition software b Trading network file distribution to minimise network traffic file distribution to minimise network traffic b Expert systems for process control b Neural networks b Word processors b Data base management

23 22 A Few General Examples of Technical Effect b Higher speed b More economical use of memory b More efficient database search strategy b More effective data compression algorithm b Improved user interface

24 23 An Example of a Good Disclosure EP 068,093 B (IBM) Word Processor Network

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28 27 Another Good Example Business Management System - Improved User Interface Giving User Convenience When Entering Data into Different Kinds of File EP 209,907B (Sohei) Decision T 92/0769

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32 31 The Sohei Claim (abbreviated) b A computer system for plural types of independent management …… comprising…… a digital processing unit …… and memory unit…… the memory unit includes five different kinds of file……the memory unit includes five different kinds of file…… means for performing five different specified functions on the files……means for performing five different specified functions on the files…… means for causing display of user interface…means for causing display of user interface…

33 32 Sohei Reasoning b The technical contribution “to provide, in the memory, the aforementioned five files and to cause the processing unit to perform the aforementioned five functions would clearly require technical considerations”“to provide, in the memory, the aforementioned five files and to cause the processing unit to perform the aforementioned five functions would clearly require technical considerations” b The description necessary Structure of the programStructure of the program Functions within the computerFunctions within the computer

34 33 A Non-technical Example Pension Scheme per se EP 332,770 (Halley) Decision T 95/0931 (Application Refused)

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36 35 The Pension Scheme Specification b No disclosure of computer system or structure and functionality of software for managing the scheme b One reference to computer for making certain calculations. b No technical features disclosed, no basis for claims reciting technical features b No technical effect disclosed

37 36 The Draft EC Directive b Probably no significant change in what can be patented b Will only permit claims to the programmed computer or the process b No claims to program on a carrier (e.g. disc) b Proposal not properly thought out practical effects irrationalpractical effects irrational

38 37 Dealings with the Programmed Computer under Draft Directive b Infringement in manufacture and sale of computer containing programmanufacture and sale of computer containing program import and export of computer containing programimport and export of computer containing program performance of the program (use of the program)performance of the program (use of the program)

39 38 Dealings with the Program on a Carrier under Draft Directive b “Indirect” infringement by selling disc for use in the country in which there is a patent b Export of disc not “direct” or “indirect” infringement no royalty collectable on exported discsno royalty collectable on exported discs royalty collectable on discs for use in country with patentroyalty collectable on discs for use in country with patent b Irrational situation

40 39 THAT’S IT


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