2022 Year in Review: Electrical & Computer Technology
The 12 months 2022 brought significant variations to the Canadian patent regulation, together with updates to the Patent Principles and developments relating to subject matter eligibility. Globally, the concern of synthetic intelligence (AI) and inventorship remained a contentious topic. As digital technologies continued to evolve in 2022, the fascination in parts this sort of as the metaverse and linked fields noticed an upward craze, as evidenced by maximize in the amount of patent filings.
In this post, we evaluation some critical highlights on the topics of: 1) patents and the metaverse 2) AI and inventorship 3) matter make a difference eligibility for computer-applied inventions and 4) amendments to the Canadian Patent Rules.
1. Patents and the Metaverse
The metaverse continued to be an important topic of dialogue and curiosity in 2022. This pattern has also been reflected in the patent entire world, with metaverse-related patent filings being on the rise. A modern report by a consulting company specializing in the detection and evaluation of emerging innovation demonstrates that patent filings for metaverse-similar systems have doubled due to the fact 2018, with Microsoft and Samsung main the pack.
Quite a few other high-profile businesses, these as Magic Leap, IBM, Unity, Roblox, Meta and Apple are also filing patent purposes for metaverse-associated technologies, with most firms pursuing patent defense for hardware and application augmented fact (AR), combined reality (MR) and virtual (VR) purposes, and far more specifically in the places of sample recognition, 3D model manipulation, head-mounted optical equipment, and interactions with the human system.
In the past couple of many years, for illustration, Microsoft has submitted a range of patent apps directed to VR and MR systems, and in 2022, Microsoft introduced ‘Mesh for Microsoft Teams’, a option that combines the blended fact abilities of Microsoft Mesh with the characteristics obtainable in Microsoft Groups and aims to “make collaboration in the ‘metaverse’ more fun”.
Roblox Corporation, the company behind the productive on line sport platform has also started submitting patent applications directed to manipulating 2D and 3D property even though Meta has expanded into wearables for interacting with digital objects.
As the principle of the metaverse continues to create, and adoption turns into much more common, metaverse-connected patent filings will certainly go on to increase.
2. AI as an Inventor
In 2022, the problem of no matter if an AI can be an inventor, lifted by the DABUS (Device Autonomously Bootstrapping Uniform Sensibility) patent programs, ongoing to make its way by way of the many courts and mental assets workplaces.  As a refresher, DABUS is an AI method formulated by Dr. Stephen Thaler, that can allegedly autonomously make inventions.
In the United States, the Court docket of Appeals of the Federal Circuit (CAFC) held that on a plain looking through, the US Patent Act unambiguously demands an inventor to be a organic particular person and for that reason, an AI program could not be named as inventor on a United States patent software, upholding the USPTO’s 2020 final decision to reject the DABUS applications and affirming the US District Courtroom for Eastern District of Virginia’s 2021 final decision. Dr. Thaler submitted a combined petition for panel rehearing and rehearing en banc at the CAFC, which the CAFC denied. Dr. Thaler is established to file a petition for a writ of certiorari just before the Supreme Courtroom of the United States prior to March 19, 2023.
In Australia, the Total Courtroom of the Federal Court of Australia held that a patent application that lists an AI process as an inventor does not comply with the Patent Rules, reversing the Federal Court’s 2021 choice which held that the Patents Act did not preclude an inventor from staying a non-human AI program. Dr. Thaler utilized for particular leave to attraction this selection to the Australian Higher Court docket, but the enchantment was dismissed, ending Dr. Thaler’s campaign in the place.
In the United Kingdom, Dr. Thaler used for authorization to charm the Courtroom of Appeal’s 2021 split determination which held that an inventor ought to be a person. Permission was granted in August of 2022 and the hearing is scheduled for March 2023.
In Germany, the Federal Court’s 2021 decision to refuse the patent applications on the foundation that only pure people can be designated as inventors has been appealed to the Supreme Courtroom.
Though in Europe, in 2021, the Legal Board of Attractiveness (the “Board”) of the European Patent Business office (EPO) refused a European patent software listing DABUS as the sole inventor, in its created explanations issued in 2022, the Board advised that the owner of an AI could be designated as an inventor of an AI-produced creation.
In Canada, the Canadian Intellectual Home Office environment (CIPO) issued a non-compliance notice in late 2021, asserting that simply because the inventor is a machine and it does not seem doable for a machine to have legal rights under the Canadian regulation or to transfer these legal rights to a human, the DABUS purposes do not comply with the Patent Act and Policies. CIPO, however, did invite Dr. Thaler to post a statement on behalf of the AI equipment and determine, in that assertion, himself as the authorized agent of the equipment.
In reaction, Dr. Thaler’s associates argued that in accordance to the doctrine of ownership by accession, since Dr. Thaler owns DABUS, it follows that he should also be the operator of creation(s) developed by DABUS and consequently, he should really be entitled to seek out patent safety for innovations produced by DABUS. Dr. Thaler’s associates also argued that in any case, precluding inventions created by synthetic intelligence from patent safety would stifle innovation. CIPO has not however commented on this placement, but the purposes have been considered Patent Cooperation Treaty (PCT) non-compliant for the time currently being.
The issue of AI and inventorship is probable to proceed to be a topic of dialogue in 2023, specifically with the increase of generative AI. Dr. Thaler and DABUS, nevertheless, will likely proceed to confront substantial issues in convincing courts and the many mental home places of work that DABUS can be named an inventor.
3. Developments in Subject matter Make any difference Eligibility for Pc-Executed Innovations
Although the first half of 2022 observed handful of developments in the law of matter matter eligibility, the 2nd 50 % of the yr was marked by the Benjamin Moore choice of the Federal Court docket, which brought substantially awareness and target to the topic.
At enjoy in this determination have been two of Benjamin Moore’s patent programs, associated to laptop-carried out colour collection solutions, the two of which experienced been refused by the Commissioner.
Dependable with the 2020 Choueifaty decision, the Federal Court agreed that CIPO’s ongoing use of the dilemma-solution method was incorrect. Even so, instead than remitting the applications again to CIPO for reconsideration in gentle of Choueifaty – the applications experienced been examined prior to that conclusion – the Court instead instructed CIPO to adhere to the framework proposed by the Mental House Institute of Canada (IPIC), an intervener in the attraction.
Less than IPIC’s 3-part framework, patent examiners are necessary to:
a) Purposively construe the declare
b) Check with no matter if the construed assert as a full is composed of only a mere scientific principle or summary theorem, or irrespective of whether it includes a useful application that employs a scientific theory or summary theorem and
c) If the construed declare includes a practical software, evaluate the construed claim for the remaining patentability requirements: statutory classes and judicial exclusions, as very well as novelty, obviousness, and utility.
The Benjamin Moore circumstance was not without the need of controversy, as the courtroom notably requested a government agency to comply with a framework proposed by a skilled association. The conclusion also raised questions about the separation of powers and the intent of Parliament, the Court’s interpretation of the Patent Act, and the unequivocal nature of the IPIC framework.
The Legal professional Normal of Canada submitted a notice to attractiveness the Federal Court’s determination and the enchantment is set to be heard in February 2023. The Federal Courtroom of Attractiveness selection is eagerly awaited by each the Canadian patent practitioners and the candidates.
4. Amendments to the Canadian Patent Procedures
Amongst the most noteworthy information in Canadian patent legislation in 2022 was the coming into power in Oct of amendments to the Canadian Patent Rules, which released vital improvements to patent prosecution in Canada.
A major transform launched by the amendments to the Patent Procedures is the introduction of extra declare charges for statements in excess of 20. If the amount of statements exceeds 20 at any time among the request for evaluation and the payment of the remaining cost, extra assert service fees will apply. Numerous dependent statements, having said that, go on to be counted as one promises for the goal of calculating assert fees.
A next critical improve to the Patent Procedures is the introduction of a new continued assessment process supposed to limit the variety of workplace actions. Under the new regulations, a ask for for continued evaluation along with the approved price are needed just after 3 office steps and subsequently, immediately after each individual two place of work actions to keep on prosecution of the application.
Other amendments include things like the introduction of a set of improvements to the see of allowance course of action. A conditional see of allowance can now be sent to applicants when only minimal defects remain in the software. Nonetheless, even though formerly, an applicant could request withdrawal of a discover of allowance to reopen prosecution and file added amendments, the new Patent Guidelines now involve that a ask for for continued evaluation be filed, accompanied by payment of the approved fee.
Although the changes have began to influence prosecution approaches in Canada in the months leading up to and given that the coming into drive of the amendments, their whole results will definitely be felt in 2023.