The European Patent Office (EPO) held its first major conference on patenting Blockchain on 4 December 2018. The one-day event in The Hague explored the implications of blockchain for patent applications as the technology, which started in the financial sector, is spreading to all technical fields of industrial application.
In his welcome address EPO President Antonio Campinos mentioned that patent applications for blockchain are rising fast and such patents are examined by the EPO in accordance with well-established criteria developed on the basis of case law related to Computer-Implemented Inventions (CII).
The first keynote Speakers (Marieke Flament and Claire Wells) covered the blockchain basics, setting out the main principles, key players and areas of use for this new technology, and the first panel discussed the future impact of this rapidly developing field and its links to other unfolding digital technologies such as Artificial Intelligence (AI).
Koen Lievens, Director at the EPO, and Wang Xinyi, Examiner at the China National Intellectual Property Administration (CNIPA) presented the offices´ approaches to dealing with blockchain patent applications, whereas Nobuyuki Taniguchi (Nakamura & Partners) presented the evolution of Blockchain-related patents in Japan.
An analysis of the emerging patent landscape has revealed a steep increase in patent applications since 2015, a trend similar to the one seen in the case of related technical fields such as AI and self-driving vehicles.
Most of the patent filings have taken place in China (40%), China (20%) and Europe (8%).
The top applicants worldwide are the following: IBM, Alibaba, Coinplug, Boe Technology, Mastercard and Bank of America.
The top applicants in Europe are the following: Visa, Mastercard, Siemens, Accenture, Nokia, Nchain and Sony.
The main technology fields (according to the CPC classification scheme) are the following: Payment architectures, schemes or protocols; Cryptographic mechanisms or cryptographic arrangements for secret or secure communication; Network architectures or network communication protocols for network security; Security arrangements for protecting computers; Finance, insurance, tax strategies; Commerce, e.g. shopping or e-commerce and Digital computing or data processing equipment or methods.
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European Patent Office (EPO) – Board of Appeal Decision in case T 1063/18 on the Patentability of Plants
Case T 1063/18 concerns the appeal by the applicant against the decision of the examining division to refuse European patent application no. 12 756 468.0 (publication no. EP 2 753 168: “New pepper plants and fruits with improved nutritional value”, Applicant: Syngenta Participations AG) for the sole reason that the claimed subject-matter falls within the exception to patentability according to Article 53(b) and Rule 28(2) EPC (plants exclusively obtained by means of an essentially biological process).
At the oral proceedings, which took place on 5 December 2018, Technical Board of Appeal 3304, in an enlarged composition consisting of three technically and two legally qualified members, held that Rule 28(2) EPC (see Office Journal 2017, A56) is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 (“Method for breeding tomatoes having reduced water content and product of the method, Patent Proprietor: State of Israel, Ministry of Agriculture, the so called “Tomatoes II” case) and G 2/13 (“Method for selective increase of the anticarcinogenic glucosinolates in Brassica species”, Patent Proprietor: Plant Bioscience Limited, the so called “Broccoli II” case).
The Board referred to Article 164(2) EPC, according to which the provisions of the Convention prevail in case of conflict with the Implementing Regulations, and decided to set the decision under appeal aside and to remit the case to the examining division for further prosecution.
The written decision containing the board’s full reasons is expected to be issued early next year.
The exclusion of plants and animals from patentability was introduced by the EPO´s Administrative Council in the European Patent Convention in June 2017, following a Notice of the European Commission from November 2016 related to certain articles in the EU Directive on biotechnological inventions (98/44/EC).
This Directive was implemented in the EPO’s legal framework in 1999. The Directive excludes essentially biological processes from patentability but does not provide for a clear exclusion for plants or animals obtained from such processes. However, in its Notice the Commission clarified that it was the European legislator’s intention to exclude not only processes but also products obtained by such processes.
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On 1 November 2018 the EPO issued the new CII Guidelines, in which all substantial changes relate mainly to sections discussing the First Hurdle (technical character), that is Parts F-IV and G-VII.
Moreover, the new EPO CII Guidelines include for the first time new sections on Artificial Intelligence (AI) and Machine Learning (ML), and on Simulation, design or modelling.
The main aspects of the 2018 EPO CII Guidelines are explained below:
Mathematical methods (G-II 3.3)
The section on mathematical methods has been completely revised, adding a distinction between contribution in producing a technical effect that serves a technical purpose, by its application to a field of technology and/or by being adapted to a specific technical implementation.
Concerning contribution by way of application to a particular field of technology, the following specific examples are given:
De-noising, detecting persons in a digital image, estimating the quality of a transmitted digital audio signal;
Mapping a speech input to a text output;
Error-correction coding of data for transmission over a noisy channel, compression of audio, image, video or sensor data;
Optimizing load distribution in a computer network;
Determining the energy expenditure of a subject by processing data obtained from physiological sensors;
Providing a genotype estimate based on an analysis of DNA samples, as well as providing a confidence interval for this estimate so as to quantify its reliability;
Providing a medical diagnosis by an automated system processing physiological measurements.
Concerning the contribution by way of specific technical implementation, a mathematical method also may contribute to the technical character of the invention independently of any technical application when the claim is directed to a specific technical implementation of the mathematical method and the mathematical method is particularly adapted for that implementation in that its design is motivated by technical considerations of the internal functioning of the computer.
Artificial Intelligence and Machine Learning (G-II 3.3.1)
The new CII Guidelines for the first time provide a section relating to AI and ML, which are first defined as computational models and algorithms for classification, clustering, regression and dimensionality reduction. They are considered per se to be of an abstract mathematical nature, irrespective of whether they can be “trained” based on (real) training data.
In order to overcome the first hurdle, a causal link to the technical purpose should be established, e.g. use of mathematical method in a heart monitoring apparatus for the purpose of identifying irregular heartbeats, classification of digital images, videos, audio or speech signals based on edges or pixel attributes, and avoid using expressions that may encompass cognitive aspects of data (e.g. textual content of a document).
Furthermore, the new EPO CII Guidelines now specify that steps of generating the training set and training the AI models also may contribute to the technical character of the invention if they support achieving a technical purpose.
Simulation, design or modelling (G-II 3.3.2)
Claims directed to methods of simulation, design or modelling can be considered technical under the same principles of the other computer-implemented inventions.
In particular, the computer-implemented simulation of the behavior of an adequately defined class of technical items, or specific technical processes, under technically relevant conditions qualifies as a technical purpose, as is the case of an electronic circuit subject to 1/f noise or of a specific industrial chemical process. This section of the new Guidelines makes it clear that lack of a final physical step of production of a product is not required for a simulation method to be patent-eligible.
This applies not only to simulation of behavior of a technical item but also in the context of computer-aided design of a specific technical object (product, system or process): determining a critical parameter such as a refractive index in an optical system or an operating parameter of a nuclear reactor constitute a technical contribution.
Schemes, rules and methods for performing mental acts, playing games or doing business (G-II 3.5)
It is explicitly defined, that if a method claim encompasses a purely mental/gaming/business realization of all method steps, it falls under the category of a non-invention and therefore is not patentable.
For example, when a simulation involves real world values obtained by a technical measurement, this is not patentable subject-matter, i.e., lacking technical character, unless:
A corresponding claim includes the step of carrying out the technical measurement, or
The use of other technical means (e.g. a computer, a measuring device etc.) or if it provides a physical entity as the resulting product, or
If it serves a technical purpose.
Steps involving non patentable subject matter can be included, however, they will be taken into account for assessing inventive step, only if, in the context of the invention, they contribute to producing a technical effect serving a technical purpose.
According to the new EPO CII Guidelines, examples of patentable subject-matter include:
When implementing a condition of matching random numbers for game paying, the use of a computer calculating a pseudo-random sequence or of mechanical means such as cubic dice or uniformly sectored reels;
A networked implementation of a game of chance like bingo, in which numbers physically drawn by an operator undergo a random mapping prior to transmission to remote players, since the scrambling of results has the technical effect of securing a data transmission; and
Interactive control of real-time manoeuvers in a game world, the display of which is subject to conflicting technical requirements.
On the contrary, as an example, computation which determine a game score or a skill rating for players, even if computationally complex, are usually considered non-technical.
Finally, concerning the Second Hurdle (inventive step assessment), a few examples are given for patentable subject-matter where, although a technical problem exists, it is not solved but circumvented:
A reduction of memory, network, or computational resources achieved by limiting the complexity of a game does not overcome a technical constraint by a technical solution;
An automated accounting method that avoids redundant bookkeeping does not solve a technical problem if such reduction of workload results from a reduction of the number of operations to be performed due to the business constraints.
Inventions realized in a distributed computing environment (F-IV 3.9.3)
This new section relates to CII realized in a distributed computing environment, in order to give guidance on unity requirements.
The new EPO CII Guidelines specify that it may be necessary to refer to the specific features of the different entities in the environment and to define how they interact to ensure the presence of all essential features, unless this is not essential to performing the invention. The different entities participating in the distributed system can be claimed without incurring a non-unity objection, however it may happen that not all claimed entities are new and inventive. This is the case when for example an entity encodes information in a more efficient way, but an information-receiving entity decodes such encoded information in a conventional way: the information-receiving entity is normally neither new nor inventive.
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