Hardware and software
Last updated: 20.5.2019
The digital technology that has become so widespread in recent decades has two complementary elements, each dependent on the other. Hardware refers to the physical components, such as the micro-processor chips and digital memory inside a computer as well as the external devices the computer controls. Software, on the other hand, includes all the protocols and instructions to tell the hardware what to do, when and how. Without software, hardware is useless; and without hardware, software cannot perform.
Patents can be granted for inventions in all fields of technology, provided that they are new, involve an inventive step and have an industrial application. In other words, an invention is patentable as long as it solves a technical problem in a novel and non-obvious manner. On the other hand, abstract concepts and ideas, such as business methods or storylines for a new computer game, do not qualify as inventions in a field of technology. Patents are generally also not granted for mere implementations of abstract concepts and ideas through conventional hardware.
Patents can protect novel and inventive products (like physical hardware) as well as novel and inventive processes, even if the sequences of steps in these processes are carried out on a computer using software. Such novel and inventive products or processes are known as "computer-implemented inventions" (CII).
Your smart phone fulfills many of these criteria - it is covered by hundreds of patents relating to the chips, the memory, sensors, receivers, transmitters and batteries inside; but also patents for the many processes, instructions and operations it carries out, all facilitated by software. These patents provide financial rewards for the thousands of inventors who developed the technologies, as well as providing a basis for technology companies to license their inventions to each other.
Doesn't copyright protect software?
Original source code and object code are protected by copyright - just as if the program was a work of literature like a poem or novel. However, while copyright protects a creator's original expression of a concept, it does not protect the underlying technical concept itself. For example, the copyright on a source code that, when being run on a computer, controls the temperature of an air-conditioned room in a novel and inventive way essentially protects only the software as is from being copied. However, copyright cannot provide protection for the actual novel and inventive solution. Patents, on the other hand, can be used to protect technical solutions in the form of products, processes and computer programs.
In the case of CII, software which does not solve a technical problem in a novel and non-obvious manner cannot be patented. However a process comprising a series of steps to solve a technical problem, may be worthy of patent protection, even if the process is carried out using software. The process in question might control external hardware (like a robot arm or a GPS device) or just run purely internally within a computer (like software to improve memory access or compress data). For example, a systems engineer who invents a new way of load balancing on a network of computers (defining which computer will perform which task), can implement the invention entirely in software. If this way of load balancing is new and inventive, it can be protected by a patent, such that competitors will be prevented from using the invention, unless they pay a fee to the patent's owner.
For such technical processes, the actual software code is automatically protected by copyright However, the functionality of the code, i.e. what the code does when run on a computer, is the decisive element that can be protected by a patent.
Thus, in addition to copyright protection for software programs, a patent may be obtainable for the technical process the software is designed to carry out (see examples below). Together, copyright and patents serve as complementary tools for inventors of CII to protect their investments and build a competitive advantage.
Some examples of CII and their inventors
Joan Daemen, Pierre-Yvan Liardet and team
This team of Belgian and French cryptographers pioneered double-key smart-card encryption, a process for making smart-card manufacture more secure.
The innovative modular design of the i-limb hand invented by David Gow allows the wearer to move individual fingers and perform complicated grips. This makes it the first ‘fully articulated' prosthetic hand in the world. Muscle movement in the residual limb is detected.
- What do patents for CII look like?
If a patent for a computer-implemented invention is not a listing of the program code, then what would such a patent look like? What would it disclose?
Patents for CII may comprise claims to computers, computer networks or other programmable apparatus, whereby at least one feature is realised by means of a computer program. If the invention concerns software which can be loaded into memory, transmitted over a network or distributed on a data carrier, a claim to a ‘computer program' or ‘computer program product' may also be present in addition to a computer-implemented method. However, in such inventions, although different claim structures are possible, the set of claims usually starts with a method claim, defining the steps performed by a computer, or other data processing means capable of running software, to achieve the desired technical effect.
A common type of CII patent relates to subject-matter where all the method steps can be fully carried out by computer program instructions running on e.g. a personal computer, the processors in a smartphone or printer etc. Other types of CII patents concern inventions where some method steps are performed outside a computer, and require specific technical means, such as a sensor. For example, in a method for automatically braking in an self-driving vehicle, sensors measure the distance to the vehicle in front, and the signals received and produced by the sensors are used to control the braking process. Physical devices like sensors provide inputs and outputs for the invention, but the decisions as to how the devices operate are taken by a computer according to parameters and instructions, i.e. software. Any patent for such an invention would protect the combination of devices and computer carrying out the novel method.
Whereas mechanical inventions are represented with technical drawings in patents, for CII the patent will often feature a flow diagram for the method, showing the decision steps in the process, and any interactions with devices and external inputs and outputs. For the method mentioned above, for automatically braking in a self-driving vehicle, the flow chart might look like this:
Figure: Flow diagram for an automatic braking system in a self-driving vehicle.
- Claim formulations for CII
Some examples of claim formulations:
(i) Method claim (claim 1)
- A computer-implemented method comprising steps A, B, ...
- A method carried out by a computer comprising steps A, B, ...
(ii) Apparatus/device/system claim (claim 2)
- A data processing apparatus/device/system comprising means for carrying out [the steps of] the method of claim 1.
- A data processing apparatus/device/system comprising means for carrying out step A, means for carrying out step B, ...
- A data processing apparatus/device/system comprising a processor adapted to/configured to perform [the steps of] the method of claim 1.
(iii) Computer program [product] claim (claim 3)
- A computer program [product] comprising instructions which, when the program is executed by a computer, cause the computer to carry out [the steps of] the method of claim 1.
- A computer program [product] comprising instructions which, when the program is executed by a computer, cause the computer to carry out steps A, B, ....
(iv) Computer-readable [storage] medium/data carrier claim (claim 4)
- A computer-readable [storage] medium comprising instructions which, when executed by a computer, cause the computer to carry out [the steps of] the method of claim 1.
- A computer-readable [storage] medium comprising instructions which, when executed by a computer, cause the computer to carry out steps A, B, ...
- A computer-readable data carrier having stored thereon the computer program [product] of claim 3.
- A data carrier signal carrying the computer program [product] of claim 3.
Example claim formulation for an invention where some method steps are performed outside a computer, and require specific technical means
1 A method of controlling the braking process in a vehicle, comprising:
receiving, in a control device, signals from sensors arranged to detect wheel blocking while pressure is applied on the brakes of the vehicle,
controlling brake pressure, by operation of said control device, to alternatingly de-block and block the wheels,
such that permanent blocking of the wheels is avoided.
2 A system for controlling the braking process in a vehicle, the system comprising sensors and a control device, the sensors arranged to detect, during a braking operation, wheel blocking and produce corresponding signals, the control device arranged, during said braking operation, to receive said signals and control brake pressure to alternatingly de-block and block the wheels, such that permanent blocking of the wheels is avoided.
3 A computer program (product) comprising instructions which, when loaded and run on the system of claim 2, causes the control device to perform the corresponding steps of claim 1.
4 A computer-readable medium having stored thereon the computer program (product) of claim 3.
Remarks: The method has steps which are executed by specific technical means (the sensors and the control device), which therefore have to be defined in the device claim because they are essential features for executing the method. In this example, the device claim may make reference to method claim 1, since it is clear how means for executing this method are to be implemented. However, a computer program making reference only to claim 1 would lack support, because such a program could not be executed e.g. on a general-purpose computer which does not have the sensors and control device. Therefore, it must be clear from the program claim that the program is to be executed on the specific system of claim 2.
- Legal basis for CII
The starting point for assessing the patentability of computer-implemented inventions is the fundamental provision that a patent should be granted for any invention, in any field of technology, provided that it is new, involves an inventive step, is susceptible of industrial application and is not expressly excluded from patent protection. Article 52 EPC stipulates that certain subject-matter is not regarded as a patentable invention when claimed as such, for instance discoveries, scientific theories and mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, presentations of information and programs for computers.
Patent protection for technical creations
Whilst the EPC sets out the patentability requirements of novelty, inventive step and industrial application in some detail (Articles 54, 56 and 57 EPC), it does not contain a legal definition of the term "invention". It has, however, been part of the European legal tradition since the early days of the patent system that patent protection should be reserved for technical creations. The legal basis for this requirement is found in Article 52 and Rules 42 and 43 EPC, as well as in relevant case law of the EPO Boards of Appeal. The subject-matter for which protection is sought must therefore have a "technical character" or, to be more precise, involve a "technical teaching", i.e. instruction, addressed to a technically skilled person as to how to solve a particular technical problem using particular technical means.
The problem solved by the invention must thus be technical, in contrast for example to a purely financial, commercial, cognitive or mathematical one. This must be satisfied in order for the invention not to be excluded from patentability.
Although the law does not define the term "invention", it does contain a non-exhaustive list of subject-matter or activities that are not to be regarded as "inventions". Among the particular examples mentioned in this list are "programs for computers". It should be emphasised that the subject-matter or activities on the list are excluded only if the European patent application or patent relates to them "as such".
In particular, a claim to a computer program claimed is not excluded from patentability if it is capable of bringing about, when running on or loaded into a computer, a further technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run. The normal physical effects of the execution of a program, e.g. electrical currents, are not in themselves sufficient to lend a computer program technical character, and a further technical effect is needed. The further technical effect may be known in the prior art.
- Case Law
The case law of the Boards of Appeal
In the field of computer-implemented inventions, many decisions have developed the interpretation of the EPC provisions relating to the term "invention", providing guidance on what is patentable and what is not. EPO case law says that controlling or carrying out a technical process is not excluded from patentability, irrespective of whether it is implemented by hardware or by software.
Whether the process is carried out by means of special circuits or by means of a computer program has been found to depend on economic and technological factors; patentability should not be denied on the grounds that a computer program is involved.
A specific claim form for the protection of computer-implemented inventions is the "computer program/computer program product". It was introduced in order to provide better legal protection for computer programs distributed on a data carrier and not forming part of a computerised system.
This claim form should not be confused with the term "computer program" as a list of instructions. Subject-matter claimed under this form is not excluded from patentability if the computer program resulting from implementation of the corresponding method is capable of bringing about, when running on a computer or loaded into a computer, a "further technical effect" going beyond the "normal" physical interactions between the computer program and the computer hardware on which it is run.
The normal physical effects of the execution of a program, e.g. electrical currents, are not in themselves sufficient to lend a computer program technical character, and a further technical effect is needed. If the requirement for a further technical effect would be dropped, and any computer program would be considered an invention, this would effectively circumvent the exclusion of most of the items mentioned in Article 52 EPC. In practical terms, subject matter such as business methods, mathematical methods, methods for performing mental acts, would then be patentable inventions, if implemented as computer programs. The requirement for a further technical effect in the case of computer programs serves therefore this purpose, namely compliance with Article 52 EPC, and at the same time enables patenting of those technical inventions implemented partly or wholly as computer programs.
The further technical effect may result for example from the control of an industrial process or the working of a piece of machinery, but also from the internal functioning of the computer itself (e.g. memory organisation, program execution control) under the influence of the computer program.
For instance, a method of encoding audio information in a communication system may aim to reduce distortion induced by channel noise. Although the idea underlying such a method may be considered to reside in a mathematical method, the encoding method as a whole is not a mathematical method "as such", and hence is not excluded from patentability by Article 52(2)(a) and (3) EPC. Similarly, a method of encrypting/decrypting or signing electronic communications may be regarded as a technical method, even if it is essentially based on a mathematical method.
On the other hand, "schemes, rules and methods for (...) doing business" are not patentable; but a new method which solves a technical, rather than a purely commercial, financial, cognitive or administrative problem may indeed be patentable.
Case law of the EPO Boards of Appeal and the examining practice
Two very influential decisions of the Boards of Appeal define the present EPO practice: T 0641/00 (Two identities/ COMVIK) of 26.9.2002, and T 0258/03 (Auction method/HITACHI) of 21.4.2004. In the first one, the Board concluded that
"An invention consisting of a mixture of technical and non-technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character whereas features making no such contribution cannot support the presence of inventive step".
In the second, the Board concluded that
"A method involving technical means is an invention within the meaning of Article 52(1) EPC".
As a consequence of these two decisions, the present approach is essentially a two-step procedure. In the first step, it deals in a more or less formal manner with the requirement of technical character. However, in the second step, it scrutinizes the features of the claimed invention, clarifying that only technical features support the presence of inventive step.
In more detail, during the first step an evaluation is made as to whether the claimed subject-matter is an invention within the meaning of Article 52 of the EPC. For apparatus claims this is always the case. For method claims, if the claim involves technical means (for example the use of a computer or the Internet), then the claim is judged to be an invention according to Article 52 EPC. In such a positive case, an evaluation of the remaining requirements of the EPC (novelty, inventive step) takes place in the second step.
In the second step of this approach, when evaluating the existence of novelty and inventive step, the Examining Division disregards any features that do not contribute to the technical character of the claimed invention.
Two further decisions of the Boards of Appeal that confirm present practice are mentioned below:
T0930/13 (M-Commerce virtual cash system / QUALCOMM) of 02.03.2017, confirming that financial and/or administrative features in the claim cannot support the existence of inventive step.
T2330/13 (Checking selection conditions in a product configuration system/SAP) of 09.05.2018, confirming that even if a task performed by the main claim is of non-technical nature, the specific technical features of the computational method performing the task can contribute to the technical character of the invention and can, therefore, support the existence of inventive step.