August 9, 2022

2021 Year In Review: Electrical & Computer Technology – Intellectual Property

2021 observed some notable developments in AI-connected patent&#13
programs and licensing of open-supply application. Nonetheless, in&#13
distinction to recent a long time, 2021 was a somewhat peaceful 12 months in the&#13
law of issue matter eligibility, i.e., what can be patented.&#13
Below, we critique current developments in: 1) issue issue&#13
eligibility for personal computer-applied innovations 2) AI-similar&#13
patent purposes and 3) licensing of open-supply software program.

Subject Subject Eligibility for Computer system-Executed&#13
Innovations

In Canada, 2021 was marked by an absence of substantial new&#13
developments pertaining to topic make any difference eligibility. Nonetheless, the&#13
developments of 2019 and 2020 carry on to supply each patent&#13
applicants and patent examiners with a lot more clarity with regards to matter&#13
make any difference eligibility, specifically for computer-applied inventions.&#13
The current developments have tended to shift the Canadian technique&#13
in figuring out subject issue eligibility closer to the US&#13
tactic, but with some factors of the European solution as&#13
properly.

To be patentable in Canada, an invention have to satisfy 4 key&#13
standards: it must be new, it are unable to be noticeable, it have to be valuable&#13
and, crucially, it should slide in the definition of&#13
“invention” (as described in the Patent Act).&#13
On this latter level, CIPO experienced, in recent years (from 2011 to 2020)&#13
utilized a “difficulty-resolution” solution to assert building&#13
when identifying topic make a difference eligibility of computer system-implemented&#13
inventions (e.g., program or business enterprise strategy innovations). This&#13
resulted in patent examiners often characterizing the alleged&#13
“dilemma” in such a method that any laptop components&#13
recited in a assert were deemed “non-crucial” to solving&#13
the issue and therefore disregarded from thought. The remaining&#13
“vital” claim features would then be simply&#13
classified as an abstract notion or mere scheme and consequently the complete&#13
creation excluded from patentability.

The “difficulty-resolution” tactic was in some strategies&#13
similar to the European Patent Office’s (EPO’s)&#13
“technological contribution” approach to patentability.&#13
All through the EPO’s creative stage analysis, the prior art is&#13
compared to the claimed subject matter-subject in purchase to distinguish the&#13
novel attributes from that of the closest prior artwork. Only people&#13
characteristics that lead to a technical option (i.e., a&#13
“additional technical impact”) of the objective complex&#13
dilemma (i.e., the problem solved as as opposed to the closest prior&#13
art) are regarded as. Any non-technological function of the invention is&#13
efficiently regarded as prior artwork for the reasons of evaluating&#13
ingenious move.

In 2020, the Federal Courtroom of Canada (FCC) ruled1&#13
that the Commissioner of Patents had erred in working with the&#13
problem-solution technique, relatively than the “purposive&#13
design” strategy set out by the Supreme Courtroom of&#13
Canada.2  The “purposive building”&#13
technique considers the inventor’s intention and the text of&#13
the assert in establishing whether unique declare factors really should&#13
be considered essential or non-important to the invention.

In response to Choueifaty, CIPO printed a apply&#13
notice – a steerage document for patent examiners – to&#13
assist in accurately applying purposive building. This steerage is&#13
now becoming adopted by patent examiners, and has brought about examiners to&#13
quit making use of the “difficulty-resolution” approach to assert&#13
design and to use the purposive design examination as an alternative.&#13
A person additional quirk of CIPO’s steering is that it implies an&#13
“precise invention” examination in which an ingredient does not&#13
“form section of the real&#13
invention
” if “it does not&#13
cooperate with other elements
of the claimed&#13
creation” (emphasis additional).

This new technique bears a resemblance to the two-stage topic&#13
subject eligibility take a look at that is utilized in the United States. If the&#13
statements are discovered to be directed to an abstract idea for the duration of move 2A&#13
of the US take a look at, then examiners are directed to contemplate regardless of whether the&#13
abstract thought is sufficiently “integrated into a sensible&#13
application” and more aspects – these kinds of as a&#13
computer – have to be meaningful limitations that provide additional&#13
than “excess-resolution action.”

Canada’s Patent Appeal Board (PAB), in its reconsideration&#13
of Choueifaty’s software, ruled that in Choueifaty’s&#13
invention “the computerized calculations in this article are not simply&#13
for yielding information and facts, but for permitting the computer to carry&#13
out the portfolio optimization methods with significantly significantly less&#13
processing and increased speed.” In other words, the laptop or computer in&#13
Choueifaty’s statements is not just a pc, it is a improved&#13
laptop. Far more importantly, the laptop or computer is far better for the reason that of&#13
Choueifaty’s algorithms. Or, as the PAB set it, the&#13
“algorithm enhances the functioning of the computer system utilized to&#13
operate it […] the computer system and the algorithm together form a solitary&#13
precise creation that has physicality and solves a challenge associated&#13
to the handbook or effective arts.”

This new Canadian solution, related to the US tactic, is&#13
possible to favour innovations that serve to improve the performing&#13
of computers, for case in point, by escalating pace, effectiveness,&#13
security or reliability. Even so, it is probable that CIPO will&#13
continue on to reject computer-executed invention promises the place the&#13
laptop or computer is incidental or tangential to the creation, wherever the&#13
remaining assert aspects can be categorized as mere scientific&#13
ideas or abstract theorems. As ever, careful and regarded as&#13
patent drafting will carry on to be vital to craft good&#13
statements and avoid these potential pitfalls.

AI-Associated Patent Programs

The better clarity delivered by current developments in&#13
identifying issue matter eligibility is likely to lead to&#13
the continuing rise of patent software filings for basic&#13
AI technologies (e.g., device learning, neural networks) and the&#13
application of AI systems in industries like healthcare,&#13
producing and transportation. In specific, we have recently&#13
highlighted the acceleration of patent activity in applications&#13
like impression recognition, genomics and the human microbiome.3

As AI systems keep on to evolve, we can count on the&#13
contribution of AI in the invention system to proceed to&#13
raise. At the moment, AI is a person of lots of resources applied by human beings to&#13
invent. Even so, there are signals that AIs may possibly soon consider on a extra&#13
well known function. For that reason, an rising situation is regardless of whether an AI&#13
equipment can be listed as an inventor on a patent and, if not, who&#13
is the correct inventor? Recent selections propose that it will be&#13
some time prior to AIs can be regarded as inventors.

The Uk Courtroom of Enchantment just lately dismissed an attractiveness by Dr.&#13
Stephen Thaler and upheld the choices of the United kingdom Intellectual&#13
Assets Business office (UKIPO) and the Higher Court of England and Wales,&#13
holding that  an inventor must be a pure man or woman and&#13
as a result a device can’t be regarded as an inventor.4&#13
Thaler is the creator of the Machine Autonomously Bootstrapping&#13
Uniform Sensibility (“DABUS”), a so-called&#13
“Creativity Device” that employs neural networks to&#13
deliver new inventions. Thaler used for two British isles patents in 2018&#13
naming DABUS as the inventor, which the UKIPO rejected. Thaler also&#13
submitted patent apps at the European Patent Workplace (EPO) and&#13
the United States Patent and Trademark Workplace (USPTO), with both equally&#13
places of work subsequently rejecting the purposes. Thaler did protected&#13
a victory in Australia with the Federal Court choosing that an AI&#13
device can be named as an inventor beneath the Patents Act&#13
1990
(Cth).5 Nevertheless, it seems possible that in most&#13
jurisdictions, the patent workplaces and the courts will wait for&#13
legislators to amend patent guidelines if AI equipment are to be regarded&#13
as inventors.

Licensing of Open-Supply Software package

Laptop computer software permeates all of society. Whilst computer software&#13
development tools have acquired in relieve of use and abstraction,&#13
computer software by itself is a lot more intricate than at any time. It truly is not&#13
unusual for even uncomplicated apps to make use of dozens of ready-manufactured&#13
software program libraries and resources. With this has appear a increase in the&#13
use of open up-source computer software in the improvement of proprietary&#13
professional pc computer software, like program embedded in&#13
components equipment these kinds of as consumer digital products. 2021 saw some&#13
notable developments pertaining to the licensing of open-source&#13
software package and the implications of incorporating open up-source program&#13
in proprietary commercial solutions.

Some open up-supply software program is built obtainable beneath so-referred to as&#13
“copyleft licenses”, which typically call for that the&#13
distribution of any computer software that incorporates or interacts with&#13
the open-resource application be ruled by the same copyleft license.&#13
The more phrases of this sort of a copyleft license may require that&#13
the supply code for the proprietary software – together with&#13
proprietary or professional program – be made obtainable to the&#13
public.

On Oct 19, 2021, the Software program Liberty Conservancy (SFC) sued&#13
Vizio, Inc. for alleged violations of the GNU General Public&#13
License (GPL) covering software package included into particular Vizio&#13
wise TVs. In its complaint, the SFC alleges that Vizio provided&#13
the Linux kernel and several involved open-source systems in its&#13
SmartCast system for televisions. SFC even more alleges that the sale&#13
of these Vizio smart televisions constitutes a distribution of the&#13
GPL accredited application, and as a result Vizio is in breach of its&#13
obligations underneath the GPL license. Specially, SFC statements that&#13
the SmartCast technique is included by the terms of the GPL, and&#13
thus, the source code for the SmartCast method will have to be created&#13
obtainable by Vizio.

The Vizio lawsuit highlights the relevance of comprehending the&#13
necessities and hazards around applying open-source software package, and in&#13
certain, about incorporating it in proprietary professional&#13
merchandise. When open-resource software can be a powerful software in&#13
agile program growth, it is essential for builders of&#13
proprietary software to create sturdy techniques and procedures for&#13
understanding of and compliance with the applicable open-source&#13
licenses.