www.fitt-for-innovation.eu software patents fitt (fostering interregional exchange in ict technology...
Post on 16-Jan-2016
214 Views
Preview:
TRANSCRIPT
www.FITT-for-Innovation.eu
Software Patents
FITT
(Fostering Interregional Exchange in ICT Technology Transfer)
2 | May 2010 Software Patents
IntroductionDiversity of IPRs
Intellectual Property Rights (IPRs) are essential assets for valorisation and technology
transfer activities. Many different IPRs exist, offering each a particular set of legal
protection for different kind of assets.
Patents
Trade marks
Copyright
Designs (registered and unregistered)
Trade secrets
Only patents and copyright are reviewed in this
document
3 | May 2010 Software Patents
IntroductionSome IP found in a mobile phone
Trade marks: Made by "Nokia”
Product "N95”
Software "Symbian", "Java”
Patents: Data-processing methods
Semiconductor circuits
Chemical compounds
Copyrights: Software code
Instruction manual
Ringtone
Designs (some of them registered): Form of overall phone enclosure Arrangement of buttons in this oval shape Three-dimensional wave form of buttons
Trade secrets: ?
4 | May 2010 Software Patents
IPRs general approach
Any inventor, creator and/or right holder are rewarded with a (bounded) monopoly on the intangible creation they relate to.
Intellectual Property (IP) relates to the ownership of intangible assets
IPRs are plural
Copyright
Patents Trademarks
Literary and artistic creations protection logicCriteria = original creations
Literary and artistic creations protection logicCriteria = original creations
Signalling & commercial protection logicCriteria = type of good/service the brand relates to
Signalling & commercial protection logicCriteria = type of good/service the brand relates to
Industrial-focused inventions logicCriteria = technical nature, novelty, industrial application
Industrial-focused inventions logicCriteria = technical nature, novelty, industrial application
5 | May 2010 Software Patents
From IPRs to IP managementGeneral Approach
IPRs create a framework
Patents, Trademarks & Copyrights do not protect the same thing. They are not bound by the same obligations in order to be granted, neither do they not grant the same rights
Registration is required (patent, trademark), or not (copyright)
Scope of protection is different
Duration and nature of monopolies are different
An efficient IPR management strategy needs to play on such IPRs complementarities
Technical issue idea Technical Solution Code Development Brand Market
PatentPatent CopyrightCopyright TrademarkTrademark
6 | May 2010 Software Patents
From IPRs to IP managementThe case of software
7 | May 2010 Software Patents
IPRs in ICT explained From Copyrights to Patents
Software components PROTECTED by copyright The program (architecture, object code + source code)
The specifications if there is an original document
An eventual prototype
Screens and interactivity functionalities if they are original
The user manual
Software components NOT PROTECTED by copyright Functionalities and algorithms (patent rights)
The executable code
Programming languages
The name, logo (trademarks)
8 | May 2010 Software Patents
IPRs in ICT explained Patents on computer implemented inventions
A patent is an IP monopoly that grants its owner:
the privilege of stopping others from making, using or selling the claimed invention
this privilege being: temporary valid on a given territory on an invention related to a process,
a product or a device in compensation of the enrichment
of the technological patrimony (published) resulting from the publication of the invention
9 | May 2010 Software Patents
IPRs in ICT explained The European patent application
The European patent application consists of :
10 | May 2010 Software Patents
IPRs in ICT explained Software patents
A patent (on software) grants the right holder a
Right to prevent third parties from commercially exploiting an invention without authorisation
• Not a right to use – instead a patent protects an invention by giving the owner of the patent the right to stop anyone from making or using the invention without their consent
Rights conferred by a European patent are the same as the rights would be if conferred by a national patent in each contracting state in respect of which it is granted
Right to assign or transfer ownership of a patent and to conclude licensing contracts
Maximum term of patent protection is 20 years
11 | May 2010 Software Patents
IPRs in ICT explained Patentability criteria
Under the European Patent Convention (EPC), patents are granted for:
12 | May 2010 Software Patents
IPRs in ICT explained What cannot be patented ? (1)
Discoveries, scientific theories and mathematical
methods Aesthetic creationsSchemes, rules and methods for performing mental acts,
playing games or doing business, and programs for
computers Presentations of information
… as such
13 | May 2010 Software Patents
IPRs in ICT explained What cannot be patented ? (2)
Why as such?
A patent claim directed solely to an item listed in previous slide will not be considered an invention and therefore will not be patentable, but …
This applies only if the patent claim relates to that subject-matter or activities directly ("as such”)
A patent claim that includes a mix of both patentable, technical, and excluded, non-technical, subject-matter can be regarded as an invention and may be patentable after all
14 | May 2010 Software Patents
Software patentsThe case of programs for computers (1)
Program for a computer "as such" is excluded from patentability, but…
Not excluded from patentability if, when running on a computer, it causes a further "technical effect" going beyond the "normal" physical interaction between the program (software) and the computer (hardware)
Programs for computers are therefore not automatically excluded from patentability
15 | May 2010 Software Patents
Software patents The case of programs for computers (2)
An invention will be considered patentable if :
It is related to a technical domain
It is a technical solution solving a technical problem
It manipulates technical data with the help of technical functionalities
The claims have technical characteristics
16 | May 2010 Software Patents
Software patents The case of programs for computers (3)
17 | May 2010 Software Patents
Software patents The case of “Products computer programs”
Claims relating to “products computer programs” as computer programs stored on a data medium are tolerated (not considered as not patentable), but…
For this, the claims:
Should be preceded by process claims
Should be based on a technical process which is new and inventive, and which could be implemented by a computer program
18 | May 2010 Software Patents
Software patents Software protected by a patent
19 | May 2010 Software Patents
Why?
Rationale:
The present document aims to recall on patentability criteria and describes
the differences between patents and copyrights in the field of ICT
Copyright aims at protecting software as such
Patent can protect the functionalities of a software as long as they satisfy
patentability criteria
Both types of protection can/should be used for software IP management
activities
However
Patents offices in USA, Japan and Europe have different practices
Different protections have different costs
20 | May 2010 Software Patents
Suggested Reading
Link to bibliography:
“La brevetabilité des logiciels” - Aurelie Jung, Centre d'Etudes Internationales de la Propriété Industrielle, Université
Robert Schuman de Strasbourg, 2006“Beware of your creations: software patents”, Eugenio Archontopoulos, European Patent Office,earchontopoulos@epo.org
“Abstract Patent ans Software”, in: “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk”, James Bessen and Michael Meurer, Princeton University Press, 2008
“Patenting software in the European Union”, José Ramon Cardeno-Shaadi, Les Nouvelles, Licensing Executive Society International, September 2007
“Patents for software: European law and practice”, presentation from European Patent Office, http://documents.epo.org/projects/babylon/eponet.nsf/0/a0be115260b5ff71c125746d004c51a5/$file/
patents_for_software_en.pdf
“Autour de la brevetabilité du logiciel”, presentation of Emilie Rollet, Département Brevets, INPI on the conference Intech’Sophia
2008, http://www-sop.inria.fr/intech/protection_logiciel/slide_inpi.pdf
“Patent teaching kit; core module 2: How patents work”, presentation from European Patent Office, http://documents.epo.org/projects/babylon/eponet.nsf/0/e32d0d43d34f5681c125763c0054b3bb/$file/patent_teaching_kit_en.pdf
Those two last presentations have served to write the present one.
Link to code book: exploitation, valuation, maturation, royalties, licensing, copyright, patent
top related