European software patentability: Breaking Bad

European software patentability: Breaking Bad

We’re taking you on a journey through the history of software patents in Europe, through the lens of pop culture. By zooming out and looking at the big picture of what the EPO has taught us over the years, we’ll be building up a clear vision on what you need to do to improve the success of your software patents at the EPO. At each step along the way through history, we’re stopping to see a case where the EPO redefined the law in a way that is still applied today.
From Parts I to VIII, we have started to benefit from looking at the big picture of the cases that define the EPO’s approach to software patentability. We are now going to visit a topic first explored in “Part VII: I’m Football Crazy, but Football’s Mad” – Graphical User Interfaces (GUIs).

Instalment IX: Breaking Bad

Overall, the British Olympic team – Team GB - probably punches above its weight. With a population of just over 60 million, it did well to finish third in the 2012 Olympics medal table below USA and China, and just ahead of Russia. Perhaps it was being on home soil in London that helped. Anyway, there was one medal which had been the curse of Team GB since they won Olympic Gold for it in 2004 - the men’s 4x100m relay. The race is simple. Four sprinters at the top of their game run 100 meters each and pass a baton – a short metal cylinder – between them. The sprinters effectively make a chain that carries the baton from the start to the finish line. However, it would seem that British sprinters, whilst they excel at the sprinting part, struggle with the hand eye coordination and timing required for the baton passing part. Despite success in Athens in 2004, they dropped batons in Atlanta (1996), Sydney (2000) and the world championships in Edmonton (2001), they were disqualified in Beijing (2008) and at the world championships in Daegu (2011). Then in 2012, a mistimed run from anchor leg runner Adam Gemili resulted in disqualification for the team. Yet again, this British chain of sprinters was broken.
The Finns were also seeing chains broken over in Munich in 2012. We’re back at the EPO with Finnish telecoms giant Nokia. However, the chain in this case did not involve sprinting, but instead the interactions of a human with a computer via a GUI.
The invention related to software to help a consumer do their shopping by directing them to certain stores that had what they wanted to buy in stock and providing the consumer with the best order to go around different shops to complete their shopping. How many times have you found yourself trudging up and down a shopping street to only then remember something else you need to buy from the shop right at the other end of town? This invention could definitely come in use. Unfortunately for Nokia, whilst the invention might have been commercially useful, the EPO found that whilst the software processed the instructions and displayed them on a screen, the advantages were all experienced by the user by having a streamlined shopping experience. The EPO stated that:
“the possible final technical effect brought about by the action of a user cannot be used to establish an overall technical effect because it is conditional on the mental activities of the user”.
This case therefore confirmed a previously introduced concept termed “the broken technical chain fallacy”. Essentially, if the argued technical effect depends upon cognitive input by a user then it will not be patentable at the EPO. In this case, the fact that the user had to react to the itinerary meant that the technical chain was broken – in other words, part of the process was performed by the user’s brain which broke the chain.
When it comes to GUIs this is a common issue that is encountered in Europe because an essential aspect of a GUI is that it enables a human to interact with a computer. But this doesn’t mark the end for GUI patents, instead it is a restriction that has to be watched out for. There are many ways to continue to protect GUIs in Europe, just as long as the advantages take place in the computer and don’t depend upon subjective aspects of the user. Just like the baton has to be continuously held by the sprinters from the beginning to the end of the race, the technical process needs to stay within the computer for the invention to be patentable in Europe. It is critical to keep this in mind when drafting claims directed to GUIs.
If you’re interested, you can read the decision here: Shopping with mobile device / NOKIA T1670/07

If you have questions about patenting software or related inventions in Europe, please contact Nick Shipp or your usual Kilburn & Strode advisor.

Preview of Instalment X: Let's get physical

New technology with exciting human – computer interaction was the order of 2013. Google Glass had been released showing what the future of human interactions with computers could look like. In the same year, you couldn't move without hearing the lush soft-electro-pop of Daft Punk with its vocoder heavy cyborg sounding vocals from their aptly named album, Random Access Memories. Even the music at the time sounded like a collaboration between human and computer.

Back over in Munich at the EPO, we were learning more about the patenting of human and computer interactions in the Microsoft case... 
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