Digital communication is the leading technological field with the most patent applications in Europe.
The growing technology development that has driven the current digital transformation phenomenon is clearly manifested in the global patenting figures. According to the latest Patent Index of the European Patent Office, in 2022, for the second year in a row, digital communication remains the leading technology field with the highest number of patent applications filed in Europe, followed in close third place by computer technologies. Consequently, companies such as Huawei, LG, Qualcomm, Samsung, and Ericsson led as main patent applicants in the same period.
This accelerated growth of technology companies that develop products or solutions based on computer programs, as well as the boom in the development of solutions based on artificial intelligence, call for reflection on the current patentability criteria for computer-implemented inventions.
A computer-implemented invention is an innovation that solves a problem using at least one electronic processor that plays a fundamental role in the solution of the technical problem. This type of inventions can incorporate additional elements to the processor. Such as antennas, processing memories, power sources, user interface, among others, thus enhancing the final solution.
Although each country has its own criteria regarding the patentability of this type of invention, the truth is that in the world, the criterion that software is not patentable and should rather be protected by copyright or by other categories of law such as trademarks or trade secrets still seems to prevail. However, this position is different from the current technological context, requiring a relaxation of the current criteria or local practices of the different Patent Offices worldwide.
Allowing the patenting of software under certain conditions generates advantages both for developers, who will be able to monetize their innovation more easily and for consumers, who will be able to count on a more sophisticated offer of IT products and services that solve different problems in the industry. Patent protection will facilitate the appropriation of the intangible asset generated. It will enable its management (sale, license, contribution to society, etc.), thus allowing the dissemination of knowledge and giving rise to new and better developments based on the available solutions.
Even with the above, to achieve robust protection, it is necessary to obtain a patent for the technical solution developed. However, it is also advisable to protect the source code by means of copyright, a simplified and cost-efficient mechanism to achieve its protection. Another option for protecting the source code is to protect it by means of a business secret, which will allow the code to be kept confidential or reserved, preventing access by third parties. In any case, it is not advisable to disclose the source code in the patent application since it cannot be protected in this way because it lacks technical character. Therefore, its description in the patent application will only generate an unnecessary disclosure of the intellectual property of its owner, which could increase the risk of copying.
Finally, it should be noted that a good example of flexibility and change of criteria has recently been generated by the Chilean Patent Office (INAPI), which, understanding the challenges of the current technological context, has reinterpreted the current regulations by changing its criteria to allow the patentability of computer software products, as well as computer-readable media. These categories were considered excluded from patent protection until 2022. This change of criteria was made explicit in the new Patent Guidelines, as well as in a Manual prepared by the Patent Authority. Thus, the Chilean local practice is quite close to the European regulations, considering that software protection is possible through the categories of computer-readable medium and/or computer program product as long as the patent application previously includes the description of the method, i.e., the set of steps to be fulfilled and the technical means on which the steps of such method are executed, which allow solving the technical problem defined in the application.
In each country, it is important to know the local criteria or practices of each Office. At ClarkeModet, we are ready for you to consult our network of experts through firstname.lastname@example.org.
Sources: (i) Patent Index, European Patent Office, 2022; (ii) Patent Examination and Registration Procedure Guidelines, National Institute of Industrial Property (INAPI), Chile, updated version 2022; and (iii) Patenting Manual. Computer Implemented Inventions and Artificial Intelligence, National Institute of Industrial Property (INAPI), 2022.