When it comes to filing a software patent in different countries in the world, you have to understand the different open-source laws, and software patents – but what do they all mean?
To get an international patent protection for your software is complicated but not that difficult. We help businesses with such problems all the time.
This article will explain them in easy-to-understand terms.
Overview Of International Software Protection Techniques
Patent protection for software, where recognized, is available for inventions that are new, useful, and non-obvious in any technology field. The criteria of patentability are established in national patent laws. Innovators have significant advantages from patent protection:
- To ensure inventors receive a fair return on commercially successful inventions;
- This will make it easier for small businesses and startups that are innovation-oriented to form successful business partnerships.
- Promoting the systematic sharing knowledge through patent disclosure is an important driver for innovation.
- Assisting in the attraction of investment partners and business expansion.
In general, software patentability analysis looks at the following factors: Inventive step, Non-obviousness, completeness of disclosure with a detailed description of code and implementation using a particular technology. Regardless of jurisdiction, a major requirement for software to qualify for patent protection is that it must have a novel and inventive feature that improves on an existing mechanism. Basically, if software does what we’ve been doing for years on a computer, it’s not a patentable invention.
There are some drawbacks to patent ownership. A patent application requires that the invention details be made public. For techniques that cannot be reverse-engineered, such as how you train your deep learning software, you may choose to not apply for a patent in these situations, but you can keep your invention a trade secret. Software disclosure could be beneficial to competitors. Patent protection may not be appropriate, especially if the application is denied. Other ways to protect intellectual property include copyright for computer software. Copyright has the advantage that it is free and automatic as long as the work is original. However, copyright can only protect against literal copying of the source code or object code. It does not protect the underlying invention used in the software.
Trade secrets do not require formal registration, except for non-disclosure agreements. Trade secret protection is one the most neglected areas of IP law. Trade secret law does not protect innovations that can be easily discovered by the public via independent discovery or reverse engineering, even in jurisdictions with it. Trade secret protection is inappropriate for standard technologies that enable interoperability, such as smartphones communications technology. Standard-setting organizations require nonconfidential technical information to be exchanged. Trade secret protection does not enable such information sharing.
While copyright and trade secret are complementary forms of protection, they don’t offer the same benefits or incentivize investment in the underlying innovation.
Next, we take a brief tour of global software patenting standards. Patents for computer-implemented inventions are granted by the European Patent Office (EPO), the United States Patent and Trademark Office (USPTO), the Indian Patent Office (IPO), the Japanese Patent Office (JPO) and the Chinese Patent Office (CIPO). Each office has its own approach. In certain circumstances, it may be possible for a patent to be granted in one patent office even if another office rejects the application.
Is software patentable?
In many countries, computer programs are not patented because they do not meet the formal requirements to qualify for a patent. Patentability is not granted for programs that are merely designed to solve a business problem. Software that solves a technical problem, however, can still be patentable.
Patent laws do not generally treat software-related inventions the same as other new technology advances. This could be because of a lack or understanding of the nature of software innovations and the protection afforded under different IP rights.
Examples of software that is not patentable include software on underlying economic practices, specific methods of organizing human activities, and mathematical relationships.
In contrast, software that improves upon computer functionality or software with technical features is patentable, particularly if it decreases the number of computer horsepower needed to carry out a particular task.
When applying for software patent protection, it is important to ensure that the invention has a complete description of the invention including the algorithm. One glance at the global patent landscape will reveal a range of approaches to patentability for software-enabled inventions. Each country in which you wish to be protected must have a patent application as the laws and requirements differ. You must submit an international patent application using the Patent Cooperation Treaty for your patent to be internationally registered, recognized and protected. Countries that are bound are by the treaty then decides whether to grant the patent based on its laws.
Impact Of Software Patenting
Software patent laws need to evolve to keep pace with the evolving ecosystem of technology. Software-related innovations should be given the same patent protection as hardware innovations. Software-based innovations are behind many technological innovations today. For example, the processors inside smartphone devices such as the Qualcomm chip now contain 3.3 billion lines of code, representing years of high-risk R&D investment.
Software companies should take the time to patent their ideas before they are too late. Waiting too long to file patents can result in a lower valuation than a company with a strong patent portfolio. A strong patent portfolio can protect your company and add value to its shareholders. Companies that are unable to secure a patent on their software inventions risk having their technology copied by competitors.
Patentability in software is complicated by the fact that many software “innovations” are difficult to describe. They involve abstract ideas and general principles. This makes it difficult to determine whether or not software qualifies for patent protection. The Patent Act defines an invention as “a new and useful art, process, machine, or composition of matter”. Despite this definition, not all innovations are granted patent rights. For instance, scientific theorems and mathematical algorithms do not qualify as new and useful. Moreover, software programs may resemble physical machines or processes, which makes it harder to classify them as a new invention.
EPO Software Patenting
Most European businesses prefer to obtain patent protection in Europe through the European Patent Office (EPO). This office (pending the introduction the Unified Patent), consists of a collection of national patents, which usually includes the UK. Some businesses might still opt to obtain their patents through the national route. This would for the UK involve applying to the UK Intellectual Property Office.
An invention which is novel, inventive, and capable of industrial application may be granted a patent in Europe, including the UK (Article 52, European Patent Convention, (EPC); section 1, Patents Act 1977, (PA 1977). Patent protection will not be granted to an invention that is merely a computer program or a method of doing business as such. Patent protection is possible for computer-implemented inventions, however.
The EPO follows a generally two-hurdle approach.
- Does the claim include technical features? If the patent claim includes any technical means, including features like a “server machine”, this test is satisfied.
- Only those features that are technical in nature should be considered. This hurdle is the most difficult to overcome when applying for a patent.
European patent applications must clearly explain what the contribution to and why it is “technical”. It is inappropriate to rely upon the US applications’ wording.
The European Patent Convention (EPC), Articles 2(c), and 3 state that a computer program is not patentable in Europe. IBM appealed to the Board of Appeals of the European Patent Office (Case number T 1173/97). This provided helpful guidance. According to the Board, a narrow interpretation of the relevant articles would have meant that not all computer program should be exempted from patentability in order to comply with Article 27 (TRIPS Agreement) which covers patentable subject matter. The Board concluded that computer programs meant only those that are non-technical. The Board also stated that it did not matter if a computer program was claimed as an individual claim or as a record on a device. This means that as long as the computer program is technically sound, it doesn’t matter what medium it is recorded on. In fact, patentability is possible. This is a significant finding, given the widespread distribution of software online.
If your software is new and innovative, you must have taken some sort of ‘inventive step’ to create it. Your ‘inventive step’ should not simply involve the improvement of a previous idea. It must also be sufficiently different from that existing idea to qualify for a patent. Inventive steps are critical to winning a patent, and many companies fail to make them.
Generally, the EPO examiner will look for a technical character in your claim. That means that your claimed process must produce some sort of further technical effect when implemented on a computer. This effect must be beyond the simple, physical interactions between the program and the computer. It can be anything from improving the manufacturing process to protecting the boot integrity of the computer. However, if your claim lacks this, it will be rejected.
The EPO has certain norms for what constitutes an “inventive step” for a software patent. To obtain a patent, your software must have some sort of technical effect or solve a specific technical problem. Any part of your software that does not meet these norms may be rejected without even being reviewed. However, if the EPO rejects your application for a software patent, it may help you formulate a global strategy to obtain patent protection.
While assessing inventiveness is a tricky process, it is necessary to prove that your invention is truly new. An “inventive step” must be more than just “an improvement” – it must be “unobvious” to anyone with a basic understanding of the technology. In other words, it should be a better solution than an existing one that would be obvious to a person skilled in the art.
UK Software Patenting
Unlike the EPO, the IPO has a more restrictive approach to software and method patents than the PA 1977. A four-step test is used to determine whether a software invention or business method is patentable. It is based on early EPO decisions ( Aerotel Ltd. v Telco Holdings Ltd. (and others) and Macrossan’s Application  EWCA Civ1371). This is the test:
- Interpretation of the patent claim
- Identify the contribution.
- Consider whether the contribution falls within the exclusions.
- Verifying whether the contribution is technical.
The Court of Appeal ruled that a telephone call prepayment system could be patentable in Aerotel/Macrossan. This was because the contribution was a complete telephone system, including hardware. However, the High Court later ruled that this particular invention was not patentable, since it was obvious under the prior Art. A system for preparing documents to incorporate a company was ruled ineligible for patentability because it did not involve any technical contributions beyond the running of a computer program.
US Software Patenting
Patenting software or a way to do business in your company may be a good idea. This will give your company a 20 year monopoly on its use in the US.
Despite several Supreme Court and appellate court rulings and the updated guidance of the USPTO it seems that most business methods will not be eligible for patent protection without inventive and technical elements and a showing of how the software invention accelerates or improve computer performance. For more information, please see our other blogs on software patenting. Although there are differences in patenting software-related inventions in America and Europe, applicants can still protect their rights under both countries by following these rules.
- Software-related inventions are subject to additional technical effects from the EPO.
- It must be connected to a practical application of an abstract idea, such as a mathematical concept, when it is claimed in the United States.
- Patent eligibility in the United States may be established if a claim involves improvements in the operation of a computer, other technology, and/or one or several elements that are not well-known, routine, or common in the field.
- The definition of a further technical effect in Europe is set out in case law. In the United States, it may be defined in the same way.
- Software that involves business methods, mathematical methods, and simulations requires extra care in Europe. The same applies to software that is patentable in the United States, provided the technical aspect of an invention is adequately described.
- Software that involves image processing or cryptography is generally considered to have technical characteristics by the EPO. If the technical aspects of the software are sufficiently described, they will likely be patentable in the United States.
India Software Patenting
1. Issues surrounding software patents in India
While Indian patent law has generally been lenient, there are some areas of uncertainty. First, under Section 3(k) of the Patents Act, computer programmes themselves cannot be patented. Rather, the software must be connected to a technical effect or ancillary invention.
Indian patent law has been evolving along with the technology industry. It has adopted multilateral agreements and integrated laws aimed at protecting the intellectual property in software. Its primary statutes governing software protection are the Patents Act, 1970, and the Copyrights Act, 1957. This article focuses on these statutes and the evolution of software patenting in India. In order to qualify for a patent, an invention must be novel and not obvious. Another important test for patentability is that a person of ordinary skill in the field of invention cannot solve the same problem by using the same method.
In 2006, the Indian Supreme Court ruled that computer programs are patentable in India. Computer programs are often used to create and use products. However, a computer programme can include other items that may have a technical effect or contribution. The decision was controversial in part because there are many inventions based on computer programs.
The ruling by the Supreme Court of India on the patentability of computer programs has significant implications for the Indian Patent Office. It acknowledges that computers have a significant impact on human progress. It has also opened up many new avenues for innovators who have hitherto been denied patent protection for their work.
Unlike in other countries, software in India cannot be patented without hardware. This rule also applies to algorithms and mathematical methods. Hence, it is important to understand the limitations and requirements of the patent process.
Patentable subject matter for software applications must be new and have industrial applicability. It is important to bear in mind that the patentable subject matter should be related to a technical effect, such as an improvement in a product. The patentability of software and mathematical programs requires inventive step, novelty, and industrial applicability.
Patenting software in India does not seem to be the best idea for India. Software patents will protect only a small minority of software inventions and will limit innovation in the country. In the long run, the technology industry needs to support open source software to ensure that software is developed to the highest possible standard.
Software patents do not help small companies, and they only benefit patent trolls and large corporations with large software patent portfolios. Patents only deter innovation and prevent small and mid-sized companies from advancing their businesses.
2. Process of filing a software patent application in India
There are many steps involved in the process of filing a software patent application in India. The first step is to fill out the application form. Once you have filled out the form and paid the necessary fees, you must send it to the Patent Office for examination. Depending on the type of patent application, you may have to wait for up to 18 months before your application is reviewed.
To qualify for a patent in India, you must have an idea for a product, process, or service. Your idea must be novel and innovative enough to be patented. Your idea should be computer software, and it must be able to be used in industry. You can also apply for a patent if it involves artificial intelligence. For example, you can apply for a patent for a software program that collects geographic data from multiple users and displays it on an interactive display.
To qualify for a software patent in India, you need to meet certain criteria. Generally, a computer program should contain novel and inventive steps, as these are the most likely to be patented. Unlike a traditional patent, a software patent in India will protect the functional aspects of your software.
In addition to these requirements, you must demonstrate the value of your invention. In the United States, you can also apply for a software patent in India. It will cost you around $1,000. It will take a minimum of three months to be granted a patent. This can be a significant expense, but it will be worth it. If your product is a game changer, you must make sure that you have the best legal protection possible. A software patent is a valuable asset that should be protected. It can increase your profits. Remember to focus on the content and the technical effects of your invention when you submit your application. The most important part of a software patent application is its novelty.
3. Guidelines issued by CRI for software patent applications in India
The CRI guidelines have been issued in India in line with the Section 3(k) of the Patents Act 1970. It aims to provide uniformity in the patent examination procedures. The guidelines include examples of software that may be patentable and try to remove any ambiguity related to software patents. These guidelines are expected to provide clearer guidance to patent examiners and reflect the government’s position on software patentability.
The IPO has sought comments from interested parties, and has organized stakeholder meetings to discuss the guidelines. However, many stakeholders are not satisfied with the government’s latest proposal. The open source code industry is strongly opposed to the new guidelines and has argued that they would violate the spirit of the patent law by making it difficult to distinguish between software and hardware.
However, India’s increasing digitization and economy, growing service sector, and a massive population means that it cannot afford to exclude software from patent protection. After all, computer programs and software are the backbone of business and invention in India. In light of this, the government has issued the CRI Guidelines to help Indian applicants file software patent applications in the country. The guidelines are designed to help applicants overcome any ambiguity related to the registration of software patents in India.
The new CRI Guidelines include several clarifications from previous guidelines. One notable change is the elimination of the three stage test. This new approach is more favorable for software patent applications than it was previously. This new approach removes the need for the patent office to consider novel hardware in the grant of a patent.
The CRI guidelines clarify the eligibility requirements for computer software patents. In India, the patent office will grant patents for computer programmes when they are the primary contribution to the invention. In addition, the claim must contain a specific contribution to the field of the invention, accompanied by clear and concise language. Further, the courts will judge the patents according to their substance, not on novelty.
The guidelines are not comprehensive. They exclude a broad class of computer programs from patentability, and may not apply to ancillary software or hardware. Therefore, they need to be read carefully. Software Patenting in India has become a common practice in the country. The 2016 Guidelines for Computer Related Inventions have cleared up any legal ambiguity and software patents are routinely granted by the Indian patent offices. In 2017, alone, four software business method patents were granted in India. This article explains more about software patenting and its impact on innovation.
4. Section 3(k) of the Patents Act
The Patents Act, India identifies certain kinds of inventions as ineligible. For instance, inventions that claim the “discovery” of a scientific principle or “a scientific theory” are not patentable. However, practical applications of scientific theories can be patented.
The courts have been divided regarding the eligibility of a computer programme for patent protection. The new proposed clause (k) also includes the word “per se”. The phrase means “per se”. The new patent law has a broader interpretation that allows for computer programmes to be protected under patent law.
The patent law forces firms to invest in innovation and hard-core research. But it also threatens to deny Indian consumers of new research products. Furthermore, domestic companies can reverse engineer the new products and provide them to Indians at lower costs. Moreover, the patent law also has adequate provisions to address patent failures. The new patents may provide products to the poor and the needy. Patentability of computer-related inventions in India is a complicated issue, a result of misinterpretations of Section 3(k) and court rulings. As a result, there has been a steady increase in the number of computer-related inventions filed in the country. In addition, the IPO has been granting more patents to computer-related inventions.
Japan Software Patenting
In Japan, a Software Patent is required to protect an invention. The definition of invention under the Japanese Patent Law is technical idea that utilizes laws of nature. A business method, on the other hand, is not an invention. However, a business method is patentable if it is implemented as Computer Software. Here are some categories of CS inventions. Japan’s Patent Act (Article 2(3), i)) explicitly refers computer programs to be patentable subject matter. To be considered a patentable invention, the Act requires that the claimed subject matter is recognized as “creation or use of technical ideas under the law of nature”. According to the Examination Guidelines by the Japan Patent Office, patentability is generally determined by claims for software-related inventions that demonstrate the cooperation of software and hardware resources.
1. Comparative requirements
The Japanese Patent Office (JPO) has very loose eligibility requirements for software-related inventions. To be eligible for a patent, a software invention must not utilize laws of nature and be technical in nature.
The JPO has tightened its standards in the last few years in response to the complaints of Japanese industry. These changes have had a substantial impact on the number of business-method related software patents granted in Japan, which has dropped from 30 percent in the late 1990s to eight percent in 2004. Additionally, there has been a significant decrease in the number of complaint trials for rejections and invalidation proceedings.
Japan’s reform of intellectual property started in the 2000s with a series of action plans coordinated by the prime minister’s Office of Intellectual Property Policy. These action plans included the enactment of the Basic Law on Intellectual Property (IPPH) in 2003, and the establishment of the Intellectual Property High Court.
If an application is rejected by the JPO, the applicant can appeal the decision. However, this appeal must be made within three months. Alternatively, an applicant can appeal a decision to a higher court, the Trial and Appeal Department. In this case, the applicant must start a legal action within 30 days of being rejected.
In Japan, there are many differences between the rights of patent holders. While Japan grants a monopoly on the underlying technology, it does not grant a right to make money using it. Moreover, a patentee cannot exercise his or her patent rights outside Japan. Japan also does not recognize the concept of induced infringement.
2. Filing requirements
The Japanese patent system has a unique patenting process. Since 2000, the Japanese patent office (JPO) has significantly tightened its standards, responding to widespread complaints from Japanese industry. As a result, the number of software patents granted has declined substantially, from over thirty percent in the late 1990s to about eight percent in 2004. The JPO has also increased its number of invalidation trials and complaint trials against rejections.
As of January 1, 2019, the Japan patent office issued a first office action (OA) on average within nine-and-a-half months. The applicant then has three months to respond to the OA by filing a petition. Subsequent OAs are typically issued six to twelve months after the response is filed.
If the PCT application is originally filed in English, the Japanese patent office will accept it. A full Japanese translation must be filed within two months of the priority date. If the translation is not filed within that timeframe, the application may be withdrawn. A full Japanese translation of an original PCT application must be filed within the same timeframe.
In Japan, software patents are subject to a different set of standards than in the United States. In 2000, computer programs were formally categorized as products. The United States and Europe have separate standards for software patents, but they are regarded as a type of invention. For example, a software patent can cover a computer program or libraries, a user interface, or an algorithm.
3. Examining requirements
The Patent Act of Japan expressly recognizes computer programs as patentable subject matter. This type of patent must disclose a technical idea that utilizes the law of nature, and the Patent Office of Japan has published examination guidelines to assist applicants in determining whether their inventions are eligible for patent protection. The Patent Office also requires that both software and hardware resources be used in collaboration to produce a patented product.
The examination requirements for software patenting in Japan differ from those of the United States and Europe. The USPTO has stricter requirements, while the European Patent Office has more lenient requirements. In addition, the USPTO has more flexibility when it comes to examining claims based on computer software, while the European Patent Office requires more technical detail. In both cases, applicants should be aware of the latest precedents and use more precise technical terms when describing their inventions.
The Japanese Patent Office has instituted a new procedure for accelerated examination, which makes it possible to get a patent for a software invention within a much shorter time. If your invention has a foreign counterpart application, you can use it as the basis for implementing accelerated examination in Japan.
In Japan, the IP Office is the main enforcement authority for IP rights, and it reviews and creates new IP rights through examinations. JPO Board of Appeal examinations are usually invalidity trials, and the Intellectual Property High Court hears appeals from the JPO. In addition, the Intellectual Property High Court also has jurisdiction over the Tokyo and Osaka District Courts. The Japanese Customs Service also acts as a border enforcement authority for IP rights.
Software is an industry that is growing tremendously and has enormous innovative potential. Because it has such high flexibility, software engineers and designers can easily develop new technical capabilities, fix errors, and release new software with simple downloadable updates. Additionally, software implementation of an invention is much faster and cheaper than hardware implementation.
It is important for applicants to specify the actual information processing and to differentiate between hardware and software. Otherwise, a patent application might be rejected because there is no technical idea to process the data. However, if the technical features of the invention exist, it will be eligible for a software patent application. Additionally, it should be clear that these technical effects will not violate laws of nature.
While there are no formal requirements for non-technical features in software patent applications, it is crucial to clarify which aspects of the claims should be considered in the substantive examination. CNIPA examiners are required to focus on the technical field of the invention. This is the same process for examining utility model applications. After preliminary examination, the Patent Office can issue an invention patent. However, the applicant must request a substantive examination within three years of filing. In addition, the applicant can request a reexamination within three months of the rejection.
4. Scope of claims
The Japanese Patent Office has stepped up its enforcement of intellectual property rights in recent years. In 2000, the JPO tightened its standards in response to complaints from the Japanese technology industry. This has had a significant effect on the grant rates of business-method-related software patents, which have fallen from 30 percent in the late 1990s to 8 percent in 2004. The JPO has also significantly increased the number of invalidation and complaint trials in recent years.
There are a number of factors that will affect the scope of a patent case in Japan. The first factor is the judicial system. Patent cases are generally prosecuted before the IP High Court, which is the exclusive venue for patent litigation in Eastern Japan and Western Japan. The IP High Court hears appeals and has a wide discretion when deciding whether to accept petitions for final appeal, discretionary review, or mandatory review.
The second factor is the scope of claims. In Japan, a claim can be a single claim or multiple claims with different requirements. A claim can be indefinite or limitless, but must be specific and not generic. A claim may also include products that are prepared by a different process. This may create hurdles in the analysis of inventive step and novelty.
The application fee is JPY 14,000, regardless of the length of the patent specification. There is also a request fee of JPY 196,000 for the PCT route. If an application meets the requirements, it may include product, machine, or device claims.
China Software Patenting
Software patenting in China requires certain steps to be taken to protect the intellectual property of your product. Among them are the requirements of technical means, Non-obviousness, and Inventive step. We will examine each of these elements in this article to help you make the right decision when filing for patent protection.
CNIPA requires patent applicants to clearly describe the technical problem, the means of solving it, and the effects of the invention. It also recommends that applicants incorporate several application scenarios in their patent application. These strategies can help strengthen the eligibility of the patent application. While CNIPA has relaxed eligibility requirements for computer software patents, specification drafting remains a critical component in a successful software patent application.
In addition to this, applicants must clarify the hardware which performs each step of the invention. For instance, they should describe the hardware used for processing information. Further, they must determine whether the entire invention uses laws of nature. For example, if a method does not use any natural laws, it will not be patentable.
1. Examples of software patenting requirements in China
Software patenting in China has become an important topic in recent years as more innovators have been developing new business models based on computer science and internet technology. Recently, the concept of “Internet Plus” has become popular – utilizing Internet technology to enhance traditional business models. In the last two years, this concept has generated significant discussion, especially in the tech sector.
Patenting software is a relatively new area of innovation in China, and the rules for its protection are more relaxed than in the US. This trend is likely related to the rapid growth of software products and services. However, there are several factors to be considered when deciding whether to apply for patent protection for your software. First, make sure that the product is original and has not been copied or modified. Second, ensure that the genetic information you plan to use was obtained legally.
Third, make sure that the subject matter of your invention is eligible for patenting. Generally, a computer program is eligible for patent protection as long as it is related to a technical method. However, if you have detailed business logic in the software, you are not eligible to file a patent application for it.
To protect your invention in China, you need to make sure you follow the patenting rules of the country. You must file an application through a patent agent registered in China if you plan on filing a patent in China. The process takes around six months for utility model patents and two years for invention patents.
Patent applications filed in China are often rejected due to a lack of unity, or for failing to satisfy Article 31 of the People’s Republic of China (PRC) Article 31 states that a patent application can contain only one invention or utility model, and if two or more inventions or utility models belong to the same general inventive concept, the patent application may be filed.
2. Technical means in a solution
A technical solution is defined as a combination of technical means that produce a technical result or have a technical purpose. Technical means can also refer to features of a computer program. For example, a computer program that allows users to adjust data transmission rates based on the needs of different users is considered a technical solution.
Under Chinese patent law, a technical solution is an aggregation of “technical means.” These technical features are typically business rules or methods that solve a technical problem. In general, the Chinese patent law does not prohibit the patenting of abstract ideas or trivial technical activities.
The criteria for granting patent protection to software has evolved over time. For instance, in the European Patent Office, a computer program is deemed a patentable invention if it solves a technical problem. Similarly, the US Patent Office considers a software invention patentable if it produces a specific technical effect. However, computer software patents are rare and require a detailed assessment.
A technical solution is the most essential characteristic of a software patent. It must be a combination of technical means, laws of nature, and other factors to solve a technical problem. A solution is considered eligible if it combines the following characteristics: the problem solved, the used technical means, and the effect obtained. Moreover, it must conform to the laws of nature. In addition, it must meet the requirements in Article 2 of the Chinese Patent Law.
In order to receive a Chinese software patent, applicants must ensure that they clearly present the technical problem, technical means, and effects. This can be done by incorporating several application scenarios into the specification. These steps can help strengthen the eligibility of the patent. While the CNIPA has loosened some eligibility regulations, the drafting of the specification is still critical. Computer software patents may still face challenges because of the non-obviousness requirement.
China has become a popular destination for foreign companies looking to obtain a patent. One of the main problems that foreign counsel have is complying with the country’s non-obviousness requirement. Chinese patent examiners often use ambiguous legal terms such as “prominent substantive features” and “notable progress” to describe an invention. This article aims to explain what the non-obviousness standard is in China and how it compares to the non-obviousness standard used in the US.
China’s domestic examination practice recognizes a number of software-related subject matters, including programs, data structures, and machine learning models. These subject matters are then added to a specification based on key points of protection. However, the non-obviousness requirement is not a requirement in all cases. For example, an application that uses AI technology to perform calculations will likely qualify for protection based on the application’s unique functionality.
When determining whether a claim is obvious, the examiner will first look at whether the claimed invention solves a technical problem. The examiner will also consider whether the technical means used to solve this problem have a corresponding structure, connection, or configuration. Finally, the examiner will look at whether the claimed feature achieves a technical effect compared to prior art.
After filing a Chinese patent application, the applicant must seek examination of the invention. The process of examination usually starts with the Intermediate People’s Court and can proceed to the Higher People’s Court if the case is deemed serious enough. In the case of an infringing application, the court can award the plaintiff damages and other remedies.
Although the standard is not based on patentability alone, the uncertainty surrounding software patents has caused the creation of a slew of patents with less legal protection. As a result, many small-time independent inventors are deterred from disclosing their inventions for fear of infringement and losing their intellectual property.
The non-obviousness requirement for software patents in China has created a complex legal landscape for foreign and domestic companies in the computer sector. It is crucial for multinationals in the computer-related fields to secure strong patent rights in the country.
4. Inventive step
Inventive step is one of the crucial elements for granting a patent. China’s patent examiner will determine whether the claimed invention solves a technical problem. If it does, the invention is obvious. Alternatively, the examiner may combine several prior art references and judge whether the combination is sufficient to establish inventive step. The inventive step requirement in China is higher than the non-obviousness standard in the United States.
The CNIPA Guidelines define a technical solution as an “additional or alternative set of technical means that provide a new and useful result.” The CNIPA guidelines define an “invention” as an “improvement of a known technology.” For example, if a user selects the highest data transmission rate for his needs, he or she can choose adapted data transmission rates for different needs.
The US Patent Office and the European Patent Office recognize software patents if they solve a technical problem. However, these terms are not well-defined and are often interpreted very broadly, making it difficult to obtain a software patent. However, the new Chinese Examination Guidelines provide clearer guidance on the requirements for achieving an innovative step. The new guidelines provide a two-part test that must be met before a patent can be granted.
In the latest Draft Revision of Patent Examination Guidelines, the National Intellectual Property Administration has clarified the requirements for computer-implemented inventions. These guidelines are now available for comment. The revisions are aimed at ensuring that computer-implemented inventions receive the protection that they deserve.
The patent examination rules in China make it vital for multinationals in the computer and software industry to protect their IP. In-house counsel must be knowledgeable of Chinese patent examination regulations and understand the relevant rules and regulations. In-house counsel must know how to file a software patent in China, as well as how to respond to office actions.
The CNIPA has approved the revisions to improve the examination guidelines and patentability requirements for computer programs. This step signals a strong and comprehensive protection for computer program inventions and encourages innovative software development. In addition, the revised guidelines allow an additional computer readable storage medium or computer program product claim to be added to the patent application.
Software Patenting Requirement in Korea
If you’ve been thinking about patenting your software application in Korea, you’re not alone. Software patents are a growing market for technology companies, and you’d be surprised to learn that the process is relatively simple. Read on to learn about the filing requirements and the application process. You’ll also learn how to appeal a KIPO decision
1. Application process
In Korea, you can apply for a patent for software. However, the process is complicated. The process is much like that of obtaining a patent for a physical product. First, you have to pay an initial fee. After that, you must pay annual fees. The total fees vary depending on the complexity of the patent and whether or not there are any KIPO office actions.
If you want to apply for a software patent, you must first understand the Korean patent law. Korea has very flexible patent law, and is lenient in examining patent subject matter. For example, AI-related inventions in South Korea are unlikely to be rejected as they don’t require hardware. However, Korea’s examination practice does not strictly test whether the software is AI-related, but more closely examines the idea’s novelty and inventive step.
During the prosecution phase, the patent office reviews the claims. It can take as long as two years for the entire process. If your application is approved, your patent can last for 20 years. But, in the meantime, you’ll be responsible for maintaining its validity. If you’re not satisfied with the results of the prosecution, you may need to reapply in another country.
In Korea, a patent is considered to be a valuable asset, and a successful application will result in a patent worth millions of dollars. However, the patent may be invalidated due to infringement, and the patentee will need to defend it in the Korean courts. If the KTC does find that the software is infringing, the district court can decide to continue the proceedings.
2. Filing requirements
Software patenting in Korea has recently been revised to increase the scope of software patent protection. This new amendment allows the patent holder to exclude others from practicing his or her patented technology, and unauthorized third-party practices are patent infringement. Most patentable inventions can be categorized into two types: article inventions and process inventions. Software, in particular, can be claimed as both a process invention and an article invention.
Korea’s patent right system aims to stimulate national industry through the grant of patent rights for technologies disclosed in Korea. These rights are only effective within a country’s borders. The country grants patent rights to first-time applicants only after they undergo a formality examination to ensure that they meet the requirements of patent eligibility. The examination is designed to ensure that there are no mistakes in the form filling or the submission of certificates, and that the application fees are paid properly.
In Korea, software patenting requires a specific claim format. For example, a claim describing an artificial intelligence algorithm that detects heat waves may not be patentable because it does not disclose the hardware components. However, a claim that does disclose these components, such as training a model on weather information, may qualify for patent protection. The claim format is also closely related to eligibility. In Korea, an AI invention may be drafted with a product claim or method claim. The Korean Intellectual Property Office (KIPO) has recently published its latest patent statistics, based on a variety of technologies. The vast majority of these technologies relate to computer arts and software. These include Artificial Intelligence (AI), Internet of Things (IoT), Intelligent Robots (AR), Autonomous Driving, 3D printing, and Big Data.
The validity requirement for software patenting in Korea is an important aspect for achieving the goal of protecting a particular software product from infringement. Software patents are granted on the basis of prior art, and the Korean Patent Office does not recognize patent applications that are not based on prior art. It also requires that a claim be inventive to be patentable.
The validity requirement for software patenting in Korea is based on a number of factors. The first is the software’s ability to satisfy the requirements of the definition of an invention. Korea requires that software fulfill statutory requirements for novelty, industrial applicability, and inventive step. Furthermore, if a software is implemented using hardware resources, it must meet the statutory requirements for an invention.
Moreover, software patents in Korea may be patented when combined with hardware or used online. A patent can last up to 20 years and is also renewable if the product is used in a specific industry. In Korea, the validity requirement is different from those in Japan. In Japan, a patent may be extended for five years, while in Korea, it can last for three years.
The second criterion for validity is whether or not the claimed software has a competitor’s product. While a software patent may be unenforceable in Korea, a software patent may be deemed valid if a third party uses the patented product to harm another party’s competitiveness.
4. Methods of obtaining a utility model patent
A utility model patent in Korea is an intellectual property right that protects the author of a new device. Like a patent, a utility model may be reported through a publication that is distributed both inside and outside of Korea, telecommunication lines, or other means of distribution. The model must contain the name and address of the person who devised it. The rights associated with a utility model patent in Korea may be exclusive or nonexclusive. Moreover, it can limit a person’s ability to dispose of the utility model.
Historically, a utility model was registered within 4-6 months of filing the application, and it only required a basic review from KIPO. However, now, it is necessary to submit the utility model for substantive review in order to receive a utility model patent. This is required to ensure that the model is inventive and provides useful effects. In addition, a utility model patent is not as powerful as an invention patent.
The novelty requirement for utility models is the same as the one for an invention, but it is significantly lower than that for a patent. For example, a utility model patent protects a purely functional device rather than a purely technical one. Moreover, a utility model patent protects an idea that improves upon existing technology in a minor way.
5. Antitrust law restrictions on software patenting
In South Korea, software patenting is restricted by antitrust law, with certain exceptions. For example, a valid patent cannot be used by competing companies to monopolize the market. It can also be rendered unenforceable in Korea if the patentee abuses his patent right. This is rare, but it can happen. Moreover, working a patent is considered an unfair trade practice, and can lead to fines from the Fair-Trade Commission.
Antitrust law restrictions on software patenting in the Korean market are imposed through a series of processes. First, a patentee may request an investigation by the Korea Trade Commission (KTC), which can issue an order barring a competitor from exporting or importing infringing products. The KTC investigation can take up to a year to complete.
In addition to IP-related disputes, Korea is also a member of the World Trade Organization and the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). Membership in these international agreements will help Korea maintain a higher level of accountability and will help enforce intellectual property rights in the country. It will also help the country become more aware of its own rights and obligations in this area. In addition to IP law restrictions, the Revised Unfair Competition Prevention Act (RUCPA) also includes a civil remedy for damages resulting from the unauthorized use of famous people’s names and images. This remedy allows for a civil lawsuit and may lead to an injunction. It also includes a provision that regulates the unjust obtaining and using of data.
Benefits Of A Comprehensive Patent Search
Searching for prior art is an essential part of the software patent process. This process involves examining the prior art for your invention in different databases. There are many different search strategies to consider, such as keyword, name, classification, and citation searches. In some cases, a combination of these strategies is used. A keyword search uses the main features of your invention to create search strings that will be used to evaluate the prior art for your invention.
A prior art search like the word suggest is done to check whether similar arts of your invention do exist or whether any previous registration of an invention that is similar to your invention exists.
When searching for prior art, you should make sure that the sources of the prior art are relevant to your technology. The Internet is an excellent resource for conducting a prior art search. Patent collections are well-indexed and contain many relevant pieces of information. However, it is virtually impossible to search these databases exhaustively. Moreover, you may not be able to access relevant databases in English. Therefore, you should consult a patent lawyer to assist you with this task. When consulting one, it is best to go for those who have enough experience in the field.
Regardless of who does the patent search, it is important to find as much relevant prior art as possible. However, some inventors prefer to do the search themselves. They will have a better understanding of different technologies and will be more likely to understand the technical material. This will reduce the risk of inequitable conduct. Inequitable conduct means dishonesty or a breach of duty by the patent applicant of being honesty during patent application process. of is a remedy Nevertheless, even if the search results are limited, it is still important to disclose them to the USPTO.
A patent search is necessary since it determines if your product would be considered an infringement. If you want to patent research properly, keep in mind the costs involved. An extensive search is more costly than a basic search. Nonetheless, it is likely to give better results and more conclusive.
While Google Patent Search is helpful, it lacks customization features and search filters, making it difficult to find relevant software patents. It is advised to avoid use of questionable search services that offer bargain-basement prices but will yield inaccurate results. Such services may not search the entire USPTO database and may only search synonyms of your software invention. The best way to search for software patents is to hire a licensed patent attorney. It may be costly to hire a patent attorney but you are assured of a more extensive search that is highly accurate and reliable.
Patent research can be complicated. It is important to work with your lawyer throughout the process which betters your experience in the dynamic field. A successful patent offers a comprehensive report on any patents that might be relevant to your invention. This information is of great value and importance to the completion of your patent application.
In summary, there are several methods for finding prior art, including the search of relevant literature and other sources. You can also set up a regular schedule to conduct this search and get notifications when the prior art changes. This can help you avoid wasting time on unnecessary searches. It is also important to note that citing prior art can reduce the scope of your patent and result in the patent being deemed invalid. The USPTO has various search methods, which you can use to find relevant prior art.The benefits of a comprehensive software patent search go far beyond a simple list of potential patents. Patent searching is an effective way to reduce the cost of patent preparation and prosecution, as well as to conduct patent mapping exercises and landscape analyses. To obtain meaningful results from a comprehensive software patent search, a comprehensive search must be based on an extensive corpus of patent references. An integrated approach involving representatives from R&D, legal, and corporate development is a great way to ensure that your software patent search is comprehensive and dependable.
The cost of patent infringement lawsuits is significant, and only large companies can afford to pursue them. Many low-risk companies are not aware of the benefits of a comprehensive software patent search. Patents have been ruled on by all levels of courts, creating complex precedents. Moreover, not all software patent applications are successful. Furthermore, some decisions invalidate existing patents, so a comprehensive software patent search is crucial.
A comprehensive software patent search also helps in identifying infringing software from competitors. This is important, as many software patents are irrelevant to your business. For example, if you are in the business of developing new software for a business, it makes sense to license a group of related software to your competitors. This way, your software will be protected against any potential infringement problems. Further, licensing agreements often take care of the infringement problems.
The results of a software patent search help you determine whether or not a similar type of software has already been developed. By checking the patent history of a specific software, you can decide whether your software is truly unique or not. If a similar software has been previously patented, you can decide whether it is worth your time and effort to patent it. There are numerous ways to find a software patent and get the best possible results.
For beginners, the interface of a search tool should be easy to understand and navigate. A Boolean search is enough for most people. For professionals, they should look for databases that feature a command line search. For example, PatBase offers United States patents and UP/EP/WO searches. You can also find patents in Asian languages with WIPS. This way, you can be sure to find the exact software patent you’re seeking.
A comprehensive software patent search will reveal whether similar software has already been patented, which is essential for protecting your new software. It will also reveal whether other software has similar features to yours. This can help you formulate your patent application language and avoid potentially conflicting applications. Further, it can save you time and money as you won’t need to spend time and money filing a patent application. There are several benefits of a comprehensive software patent search, and they’re worth exploring if your project is unique.
Hiring A Lawyer To File A Software Patent
You can get a software patent if you have developed innovative software. This type of patent is known as a utility patent, which means that the software must qualify as a machine, process, article of manufacture, or composition of matter. This type of patent is valuable because it can prevent other people from using, selling, or modifying your software. It is important to hire a software patent attorney in Boston to ensure that your software is protected.
A software patent attorney can help you with the entire process. They can assist you in determining if your invention is patentable, as well as write a strong patent application that will prevent your competitor from copying your idea. Hiring a lawyer to file a software patent will allow you to get a patent faster and save yourself the time and hassle of trying to figure out how to write your own application.
Once you’ve hired a patent attorney, you should have a set of expectations with them. Make sure you hire someone with high experience and a high level of motivation. After all, you’ll be working with this person for two or three years, so you should feel excited about hiring them. Moreover, you want to hire someone who knows how to properly prepare for the entire process. You should also make sure that they have the right background and can handle complex legal cases.
Choosing a lawyer who is well-versed in software and who understands the intricacies of the field will help you save time and money. It can also help you avoid wasting valuable credibility by having to make amends a couple of times. Your attorney will also be able to understand the case from a technical perspective and develop a theory based on the technical details.
Although hiring a lawyer for your software patent isn’t mandatory, it is a good idea. After all, it is your company’s reputation on the line. It is in your best interest to choose a lawyer who has experience in software patents. Regardless of whether you have an in-house legal team or work with a licensed patent attorney, a lawyer can provide invaluable help.