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Patentability of Computer Software and Business Methods: Practical and Technical Issues (Topic 4) Sub-Regional Seminar on Protection of Computer Software. Mangalia August 25, 2010. Tomoko Miyamoto Head, Patent Law Section, Patents and Innovation Division, WIPO. Computer software.

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Patentability of Computer Software and Business Methods: Practical and Technical Issues

(Topic 4)

Sub-Regional Seminar on Protection of Computer Software

Mangalia

August 25, 2010

Tomoko Miyamoto

Head, Patent Law Section, Patents and Innovation Division, WIPO

computer software
Computer software
  • Computer software performs “functions” through “expressions”

knowledge

characteristics of knowledge
Characteristics of knowledge
  • “Non-rival” Knowledge can be used simultaneously by many people
  • “Non-excludable” Once acquired, people can freely use the knowledge

Free rider problem

Patent system

- Granting exclusive right  incentive to innovate

- Duty to disclose inventions  promote sharing of knowledge

computer software1
Computer software
  • Computer software performs “functions” through “expressions”
  • Software is a tool to implement a useful idea

a core of an invention

protected by patents

the patent system
The patent system

Patent office

Patentee

Exclusive right to prevent others from using, making etc. the patented invention without the patentee’s consent

Patent applications

Granted Patents

Patent examination- Patentability req. - Patentable subject - Novelty - Inventive step - Industrial applicability/ Utility

- Sufficient disclosure

Third Parties

Access to patent information

the patent system1
The patent system
  • Exclusive rights on an “idea” going beyond the expression
  • Registration system; “Claims” define the scope of protection
    • In theory, clear boundary of protection
    • In practice, the possibility of interpreting the claims
  • Complicated procedure to obtain patents
  • Territorial rights
  • Costs for obtaining and maintaining patentsex: 2 countries (JP, US) = $17,000

7 countries (JP, US, DE, FR, UK, CN, KR) = $60,000

  • Time consuming examination pendency period: 32M (US); 45M (EPO)
promote innovation not all creations of our mind are patentable
Promote innovation Not all creations of our mind are patentable

Exclusions from patentable subject matter

  • Fundamental principles should not be covered by the exclusive patent rights

ex. Law of nature; Mathematical methods

  • Something that has not had a concrete application in the real world should not be patented

ex. Abstract ideas; Mental acts

Software can be a tool to implement…

  • mathematical methods (calculating the circular constants (pi))
  • mental acts (playing a chess game)

But software can also be a tool to implement …

  • concrete and tangible technical ideas
computer software2
Computer software
  • Computer software performs “functions” through “expressions”
  • Software is a tool to implement a useful idea
  • “Functions” achievable only with hardware; But software can be “traded” without hardware
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Software

Hardware

Hardware controlled by software (washing machine)

Hardware the technical feature of which is characterized by software (computer with application software)

Software embodied on a machine readable medium (application software on CD-ROM)

Software through network (Interactive game software downloaded via the Internet)

Reference: JPO web site

patentability of business methods
Patentability of business methods
  • Many business methods implemented by software
  • Similar issues can be identified with respect to business methods implemented by software (ex. e-financing, e-shopping)
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Thank you

Tomoko.miyamoto@wipo.int