What is a computer-implemented invention?
A computer-implemented invention is one that requires the use of a computer, a computer network or other programmable device, where one or more features are realized wholly or partly by means of a computer program.
It is common to hear or read the expression “software patents”. The term “software” is ambiguous, since it can be understood as the set of instructions written in a programming language to implement an algorithm, the binary code loaded into a programmable device, and can also cover accompanying documentation. To avoid confusion arising from this expression, the concept of “computer-implemented invention” has been introduced.
The grant of a patent for a computer-implemented invention necessarily requires the existence of a technical problem solved in a novel way that is not obvious to the person skilled in the art, i.e. the same requirements as those demanded for inventions in all fields of technology.
The resources and efforts required for the creation and marketing of computer-implemented inventions can be enormous and the protection granted by patents for this type of invention is as necessary and deserved as for innovations in established and traditional technologies.
Although there is no legal definition of the term “invention”, the European legal tradition from the early days of the patent system recognises that the protection conferred by patents should be reserved for technical creations. The object for which protection is sought must therefore have a “technical character” or, more precisely, a “technical education”, i.e. an instruction to a technically skilled person on how to solve a particular technical problem using particular technical means.
The problem solved by the invention must necessarily be technical, in contrast, for example, to a purely financial, commercial or mathematical one. The list of subjects or activities that are not considered inventions, including computer programs, are excluded from patentability only insofar as the Spanish patent application or patent refers exclusively to one of them considered “as such”.
It is very important to bear in mind that a subject matter or activity is considered “as such” when it is devoid of technical character.
The execution or control of a technical process is not excluded from patentability, regardless of whether it is implemented by hardware or software. The choice between carrying out such actions by means of special circuits or by means of a computer program depends on economic and technological factors; patentability should not be denied merely because the execution of a computer program is required to put the invention into practice.
In order to facilitate the legal defence of patents granted for computer-implemented inventions, the formulation of form claims is allowed: “Computer program characterized by executing the method of the first claim”. Equivalent forms of expressing such claims are also acceptable.
This category of claims is only admissible if the technical effects that occur in the execution of the program are part of the technical solution that the computer-implemented invention proposes and are, in addition, effects that go beyond the normal physical interactions between the program and the physical equipment that take place in the execution of all programs.
The normal physical effects of the execution of a program, such as electrical currents, are not in themselves sufficient to give a computer program a technical character, and the involvement of an additional technical effect is required. This additional technical effect must be part of the control of an industrial process or of the operation of a machine, but also of the internal functioning of the computer under the influence of the software.
A method of coding audio information in a communication system may be aimed at reducing distortion induced by channel noise. Although the underlying idea of such a method can be considered to lie in a mathematical method, the coding method considered as a whole is not a mathematical method.
Similarly, a method of encrypting electronic communications can be considered as a technical method, even if it is essentially based on a mathematical method.
If a mathematical algorithm in the context of an invention has a technical aim or purpose it is considered to constitute a technical teaching and therefore is not a mathematical method “as such”. Thus, a mathematical method for generating random numbers that simulate electrical noise in the context of an invention to determine the performance of an electrical circuit has a technical purpose and is therefore not considered a mathematical method “as such”.
On the other hand, the same mathematical method for generating random numbers for the purpose of determining the order of participation of the participants in the context of a game has no technical purpose and is considered to be a mathematical method “as such” and, consequently, is a feature that does not confer a technical character to the invention.