Friday, April 07, 2006

EU and UK Patent Law - Ideas and Mental Acts are Not Patentable

Three cheers for the London High Court, which, according to, has denied a patent for document assembly.

As written by Out-Law News on April 5, 2006:

"UK patents, like European patents, are only supposed to be granted for inventions which are capable of industrial application, which are new and which involve an inventive step. Schemes for performing mental acts, carrying out business methods and computer programs "as such" are among the exclusions from the scope of patentability."

That paragraph should be sent to every judge and legislator in the United States so that they begin to appreciate what the difference is between a "real patent" and a "simple monopoly claim for an idea".

Accordingly, in the case under review, "a patent application for an automated method of acquiring the documents necessary to incorporate a company" was refused as not being patentable.

Mr Justice Mann explained the new procedure recently implemented in the UK for patent examination which ought to be to mandatory reading for the United States Patent and Trademark Office and its staff. As news summarizes:

"Patents Office examiners now:
- "Identify what is the advance in the art that is said to be new and not obvious (and susceptible of industrial application)," and
- "Determine whether it is both new and not obvious (and susceptible of industrial application) under the description of an 'invention' in the sense of" the European Patent Convention, reflected in the UK by the Patents Act.

The critical test in the UK, according to Mr Justice Mann is found in this reasoning:

"The point of the invention is to arrive at the appropriate company with the appropriate incorporation documents on the basis of information supplied by the user. This act of applying the criteria to arrive at the correctly documented conclusion seems to me to be clearly a mental act. Without a computer a skilled individual would do the same thing in much the same way."

That last sentence should be the benchmark for initially determining whether something is patentable.

If a skilled individual would do the same thing in much the same way - and this is clear in such cases as Amazon's one-click buying, MercExhange and eBay (instant buying), Eolas and Microsoft (instant application embedding) and NTP and RIM (instant e-mail messaging) - cases where it is clear that patents have not been stolen but rather where "other" skilled individuals have done a particular thing in much the same way as the patent claimant claimed in his patent application, then it is clear that the patent application tries to patent "a mental act" or "an idea", which is not an "invention" and is therefore not patentable.

Neither an idea nor simply writing down that idea on a piece of paper or submitting that idea in a writing to the patent office should ever be regarded as an "invention".

An invention, in our view, is a SPECIFIC incorporation of an idea into a SPECIFIC demonstrable product, and it is that product which should be patentable, and that product only. Any individual with the same idea but incorporating that idea into a different demonstrable product is NOT infringing the patent of someone incorporating that same idea into another demonstrable product. For example, a particular kind of mouse trap can be patented, but not the mouse trap idea per se. Indeed, a mouse trap which works by enclosing the mouse should only be patentable for one specific way to do this and not for all means by which a mouse can be "caught" in an enclosure. Even the broad general idea of a "door closing" on the mouse should not be patentable since that is obvious. Something has to be "invented" which is not obvious.

Put a different way, patents should not keep others from developing new inventions to achieve a particular objective. If the patent does that kind of limitation, then the patent granted is too broad, and should be revoked. A good example here is the EOLAS case where only the specific implementation of the idea, demonstrable in a product (EOLAS has no such demonstrable product), of embedding an application instantly into browser could be patentable. What the USPTO has done is to grant a patent which prohibits anyone else from instant embedding of applications into browsers, and that is government absurdity and stupidity at the highest level.

Somehow, American jurisprudence does not seem to "get it" on this very important point and we do wonder what the reason for that is. Perhaps it is the "get quick rich" US mentality? Just getting rich by having a good idea? Should that be enough? We think not. Society prospers primarily through the implementation of good ideas and not by the good ideas per se. Hence, it is also the actual implementers who should be primarily rewarded through the patent system and definitely NOT the patent trolls. Good ideas are and should be a "dime" a dozen, also in the eyes of patent examiners.

In the instant case, the patent applicant should of course be able to retain his copyright in his particular software, so that no one can steal that particular work. Nevertheless, the idea that companies can be incorporated online (by whatever method of juggling documents) has nothing to do with being an "invention" and of course there will be many websites down the road who offer this service in many different ways, and that is as it should be.

The best implementation of the idea will win in the end, and this will not necessarily be the person trying to patent a monopoly on that idea now. Ideas are not inventions.

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