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."

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