NORWEGIAN SOFTWARE
COMPUTER-RELATED INVENTIONS: A NORWEGIAN PERSPECTIVE
Patent protection for computer-related inventions in Norway has to be considered in an international context, says Timothy Norris.
In general, patent protection seeks to provide a fair balance between the costs of innovation whilst providing a degree of time-limited monopoly for recovering these costs. Patent protection is essential for pharmaceutical products, which are products of considerable long-term investment. In comparison, computer-related inventions involving soſtware products are oſten developed in Norway by small and medium-sized specialist soſtware companies, which have limited financial resources and experience a rapid turnover of new soſtware products. Te product lifetime may be only a couple of years.
In the United States, the US Patents and Trademarks Office (USPTO) has adopted a more positive approach to protecting computer- related inventions compared to Europe. Norway has followed the European Patent Office (EPO) closely since Patentstyret (Norway’s Patent Office) undertook to harmonise with EPO practice. Other countries, such as China, do not allow patent claims relating to soſtware products.
Whereas the European Patent Convention (EPC) contains specific provisions to exclude patent rights for methods of doing business and programs for computers, and Norway’s patent law contains similar provisions, and there are no such explicit exclusions in US patent law. Large US computer and soſtware corporations have developed elaborate soſtware platforms, such as Microsoſt Windows, at considerable cost and have been motivated via patent rights to protect their soſtware inventions. US patent law has been correspondingly compliant to extending the boundaries of patent protection to accommodate computer-related inventions and closely allied business method inventions.
In Europe, and also in Norway, the economic situation for soſtware companies is somewhat different. Europe lacks large computer corporations of a scale akin to those in the US. Many soſtware products are developed by relatively small companies that rely more heavily
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on copyright protection than patent protection and that oſten piggyback their soſtware products onto platforms such as Microsoſt Windows or similar. A further characteristic is that these soſtware products oſten have a relatively short commercial lifetime before they are updated. Timescales associated with establishing patent rights are oſten inappropriate for the short commercial lifetimes of these soſtware products. Norway has by tradition been principally a raw materials-producing country, but more recent experience has shown that Norwegian companies involved in raw materials extraction need specialist types of soſtware products for supporting their commercial activities, and so Patentstyret has developed competences in examining complex soſtware-related inventions.
However, two decisions in the US (State Street Bank and Bilski) have defined limits in the US and swung the liberal US approach to computer- related inventions more towards the restricted European approach. Te State Street Bank decision defines eligibility for patent protection in the US if it involves some practical application and, in the words of the State Street Bank opinion, “… it produces a useful, concrete and tangible result”. Te Bilski decision concerns the patenting of method claims, particularly business methods. Te Federal Circuit court affirmed rejection of the patent claims involving a method of hedging risks in commodities trading, also reiterated a ‘machine or transformation’ test as being the appropriate test for patent-eligible subject matter, and stated that the test in State Street Bank should no longer be relied upon.
Te Justices in Bilski unanimously held that business methods are patentable in principle; and although the machine or transformation analysis is a “... useful and important” test of patentable subject matter, it is not the only test. Nonetheless, a business method claim that does not meet the machine or transformation test has to overcome a high threshold to demonstrate
that it is not merely an abstract idea. Te court did not provide guidance about what constitutes patentable subject matter. Tus, except for a recognition that process patent protection is available for ‘information age’ technology, we are leſt with little more than the uncertainty that existed before Bilski.
We await the EPO response to the decision, but do not expect any immediate change in EP or Norwegian practice.
Timothy Norris is a European patent attorney at Acapo AS. He can be contacted at:
tn@acapo.no
Timothy Norris is qualified as a European Patent Attorney (EPA). He has a PhD within microelectronics (including nanotechnology), especially regarding production equipment. He also has a Bachelor’s degree from London University in electrical and electronic engineering. Tim has been working for Acapo AS since January 2007. Earlier, he worked for many years in connection with intellectual property in the United Kingdom, Denmark and Sweden. He has extensive experience in silicon micromachined devices, telecommunications, renewable energy technologies, oil industry and consumer product design. Furthermore, he undertakes draſting and processing of patent applications, oppositions, assessing infringement situations and strategically advising on IP strategy.
World Intellectual Property Review September/October 2010
63
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