Bonum Certa Men Certa

Software Patents Are a Dying Breed of Patents Except in China (and Maybe EPO)

Shen (SIPO), Lutz, Battistelli, and Lamy at the end of 2016 in Saint-Germain-en-Laye

SIPO Lamy and Battistelli

Summary: The patent maximalists would like us to believe otherwise, but software patents are generally going away; even if they get granted by patent offices (to fake 'production' or game the numbers) the courts typically reject these

WHILE the EPO emulates China on human rights (or lack thereof) it also emulates China on patent maximalism, openly promoting software patents while the USPTO gradually moves away from these.



It's important to recognise that with the exception of China and the EPO (we don't say Europe because pertinent national patent offices across the European continent don't apply) IP5 is not so interested in software patents.

There's a new interview at Managing IP, a patent maximalists' site. "Karry Lai talks with Michael Ding, ABB’s head of IP operations for Asia, the Middle East and Africa, about trends in software patents and trade secret protection in China," says the summary. "From IP [sic] assets generation, extraction to risk mitigation, Michael Ding works with an IP team of more than 10 people to ensure that IP rights at ABB are well protected." [sic]

Karry Lai, who is based in Hong Kong, published this behind a paywall, so we cannot see what's said about software patents (the headline is "ABB’s Asia IP head on software patents and trade secrets"). We routinely emphasise that China is just about the only country that allows software patents these days (without even hiding that it's about algorithms). The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law.

"The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law."Software patents in Australia, as this new post serves to reveal (cross-posted elsewhere, e.g. Lexology), are also going away. Australia too has become rather intolerant of software patents, even before applying or taking into full effect recommendations from the Productivity Commission (it opposes software patents). Look below the somewhat misleading headline from the patent microcosm in Australia (Sam Mickan and Mattia Pagani from Davies Collison Cave). The court rejected software patents; not just once:

In Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421, Justice Perram of the Federal Court of Australia found two innovation patents to be invalid for not involving a manner of manufacture, thus failing the Australian test for patentable subject matter.

[...]

Justice Perram, when considering the issue of patentability, acknowledged that the implementation by a computer of the combination of steps of the invention constitutes a new use of the computer, capable of enhancing the experience of a user. However, what the inventions failed to do, in his Honour's view, was to cause an improvement in the computer itself.

Justice Perram noted that, in principle, any software could be said to cause an improvement in a computer, because without it, the computer would not be able to perform a certain task. The requisite improvement however was considered to be one that provides the computer with some new ability, previously unattainable. A case in point of the necessary improvement was IBM's software for drawing curves without using floating point arithmetic.

[...]

This judgment by a single judge of the Federal Court represents a strict interpretation of the principles established by the Full Federal Court in Research Affiliates and RPL Central. It will be interesting to see whether the same strict interpretation is maintained on appeal.

This case demonstrates that it may be beneficial to link a discussion of innovative step (or inventive step) to that of a technical contribution (e.g., new functionality in a computer) despite the Australian requirements for inventive/innovative step and manner of manufacture being formally separate.

On this note, following a recommendation by the Productivity Commission in its Inquiry Report on IP Arrangements that "IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims", there has been a public consultation by IP Australia, in which three options were put forward to improve the information available to Examiners when assessing inventive step. You can read more about that public consultation here. In response to that consultation, IP Australia has indicated that they propose to adopt a requirement that Examiners assess technical features through the inventive step requirements, and that this change will be implemented through changes to the Patent Manual of Practice and Procedure.


The above words, terms like "innovative step" (or "inventive step") as well as "technical contribution," are commonly (mis)used at the EPO. At the end, however, it's for national courts to decide (there's no UPC) and experience suggests they're not particularly friendly towards such patents.

We look forward to the day the world as a whole can leave software patents behind, putting them deep inside the ashtray of "bad ideas we've abandoned."

Recent Techrights' Posts

Many Reports About Microsoft Layoffs Are LLM Slop Based on Other LLM Slop (From Microsoft-controlled LLMs That Downplay the Layoffs or Give Badly Outdated Data)
The LLM slopfarms also dilute/derank actual news about Linux by pushing Microsoft Azure instead; it's a spamfest!
 
Gemini Links 16/03/2025: Threats to Canada and How to Process News Online
Links for the day
Links 16/03/2025: Growing Tariff Hostilities and Social Media Surveillance
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 15, 2025
IRC logs for Saturday, March 15, 2025
Gemini Links 15/03/2025: Sleeping in March, Headless Raspberry Pi 4
Links for the day
Links 15/03/2025: Hey Hi (AI) Hype Waning, Microsoft and Apple Ridiculed for Vapourware
Links for the day
When You Expose Corporate Crimes, Misconduct and Lies They Harasses and Troll You. Then You Write About the Harassment and Trolling and They Allege It's "All Personal".
protect women's safety
Gemini Links 15/03/2025: Bandcamp and DST
Links for the day
Links 15/03/2025: Albania TikTok Ban, No Skinnerboxes in Danish Schools
Links for the day
Sierra Leone: Android Up to Record Highs, Windows Falls to Record Lows of Almost 5% (15 Years Ago It Was 100%)
This is what happens when about 83% of Web requests come from mobile
Margarita Manterola (marga, Google) & Debian DebConf13 Swiss venue intrigue
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 14, 2025
IRC logs for Friday, March 14, 2025
'India Today' is a Slopfarm, Sometimes 'Covering' "Linux" With Slop Images
New example of pure BS
Gemini Links 14/03/2025: Grizzy Bear and Prime Beats
Links for the day
Links 14/03/2025: ProPublica Admitting That It Uses Slop (Foolish Move), RIP Mark Klein
Links for the day
Windows is Fast Becoming Insignificant to Zimbabweans
based on this survey, less than 1 in 6 Web requests may originate from Windows
Rumours of IBM Layoffs Again, This Time Marketing
It's "bad marketing" to talk about layoffs
The Fall of the Open Source Initiative (OSI): The OSI Does Not Speak For You, OSI Staff Speaks for GAFAM/Microsoft (the Paymasters)
they speak for proprietary software companies, but they wear "open" on their sleeve
Microsoft Money Used for Abuse of Women and Against Journalism in Support of Women (the Victims)
"Never interrupt your opponent while he is in the middle of making a mistake."
Slopwatch: linuxsecurity.com and hamradio.my (in Planet Ubuntu) Are at It Again With LLM Slop About "Linux"
LLM slop does not save time
Links 14/03/2025: Chinese Tensions With Australia, Putin Turns Down Ceasefire
Links for the day
Gemini Links 14/03/2025: Löjl and Docker Context Stuff
Links for the day
Links 14/03/2025: Scam Currencies in the US and Oligarchs (Including GAFAM) Controlling All the Major Policies
Links for the day
Antisemitic Attacks on Richard Matthew Stallman (RMS) in Wikipedia This Week
Did the man strike a nerve or what?
Bluewashing Ends DEI at IBM and at Red Hat (HR or Hiring Become Gender- and Race-Neutral)
All that "whitelist is racist" stuff is likely a thing of the past
Links 13/03/2025: Intel Rotates Figurehead and South Korea Imports Karen People From Myanmar
Links for the day
Meanwhile at Microsoft Canonical...
Promoting proprietary surveillance by a company that actively attacks Linux in a lot of ways
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 13, 2025
IRC logs for Thursday, March 13, 2025