European software patentability: Cutting through the noise

European software patentability: Cutting through the noise

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.
In Part I to Part IV of our journey, we’ve seen the EPO set out the foundational principles of how software patents are dealt with in Europe. Next, we’ll build upon “Part V: Cheating your way to the finish line” to discover how the EPO really cares about the purpose of your invention.

Instalment VI: Cutting through the noise

Our story now takes us to 2006, the year Silicon Valley darlings Facebook, Twitter and YouTube were born (do you remember life before them?), but we’re not here to talk about them. Instead, we want to take you back to think PINK in 2006. We’re not talking about the American singer, even though her 2006 album “I’m not dead” was somewhat of a comeback for her. We’re also not here to talk about Steve Martin’s appalling resurrection of Peter Sellers' classic 60s film the Pink Panther. In fact, are we even allowed to mention a film that scores less than 25% on Rotten Tomatoes? We’re also not even talking about Millennial Pink – remember that? Well that term wasn’t even coined for another 8 years. No, we’re here to get technical and talk about pink noise.
What’s pink noise you ask? And why was it significant in 2006? Let’s start with the second of those two questions first.
In 2006, the EPO issued the Infineon decision, which dealt with the question of the patentability of simulations – the same issue dealt with in the 2021 Enlarged Board of Appeal decision (G1/19). The case comes from the issue that when you’re simulating a technical process then arguably nothing technical is happening as it is all the hypothetical simulation of reality. However, the result of a simulation is that you can make better drugs, improve performance of engines and better understand the impact of a chemical process. So, at the time there were suggestions that even though the simulation itself might not be technical or produce a further technical effect, the fact that the simulation takes place positively impacts something that is then done in the real world. In other words, there is a resultant technical advantage to the simulation.
In the Infineon decision the EPO agreed. The EPO concluded that software inventions must have a technical purpose. The purpose of the simulation mattered. For example, according to the EPO, software for controlling a braking system is technical, whilst simulating a financial transaction is not.
So let’s go back to the first question – what is pink noise? Pink noise, or 1/f noise, is a signal or process with a frequency spectrum such that the power spectral density is inversely proportional to the frequency of the signal. Still with me? Well, even if you’re not, what was significant in the Infineon case was that the invention related to simulation of an electronic circuit in relation to 1/f, or pink, noise. It was found that simulating test circuits, instead of testing on real circuits, significantly reduced the number of circuits that needed to be produced, tested and ultimately wasted. Since the simulation was of an electronic circuit it was deemed to have a technical purpose. Therefore it was not excluded from patentability under the EPC.
The Infineon case therefore taught us more about what Vicom first laid out back in 1986 – that inventions were not excluded if they are “technical”. Furthermore, as the simulation was purely software, we then saw the application of the IBM case’s further “technical effect”. In particular, the software, which was loaded onto a computer, provided for improved automatic simulation and evaluation of noise-affected circuits.  It is nice seeing the law converging in this way to a logical result.

In practice, the result of Infineon is that inventions in fields where there is arguably not a technical purpose for the invention can be very difficult to protect at the EPO. Spoiler alert – this general principle has now been confirmed at the highest level in the 2021 Enlarged Board of Appeal decision (G1/19). Sadly, examiners can quickly point at the related section of the EPO’s Guidelines to kill off a case early. Hence, care needs to be taken when drafting to ensure the invention is framed with a clear technical purpose, not simply with technical advantages associated with the software-implemented process.
If you’re interested, you can read the decision here: Circuit Simulation I / Infineon Technologies T1227/05

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 VII: I'm Football Crazy, but Football's Mad

Case law also moves with the times and as we move to 2006, we look at a case that taught us about something fresh at the time as we were on the brink of the smartphone revolution. But firstly, let’s talk about something far more exciting, soccer.​ Continue reading►

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