Emerging Technologies and the EPO
L. Bosotti (IT), Member of the OCC
1. The report on "Patents and the Fourth Industrial Revolution" of December 2017 bears witness to the attention paid by the EPO to Information and Communication Technologies (ICTs). The 6thIndo-European ICT Conference, co-hosted by the EPO and the Indian Ministry of Electronics and Information Technology, in association with the European Business and Technology Centre, and the Centre for Development of Advanced Computing held at the EPO in Munich on 29 November 2018 and the one-day conference Patenting Blockchain held at the EPO in The Hague on 4 December 2018 further confirm the continuous interest brought by the EPO as a stakeholder in the Fourth Industrial Revolution. The presentations at both conferences are available for consultation and downloading at the website addresses indicated below.
2. A presentation given in Munich (Weibel - IP Counsel, Siemens) placed emphasis on three main points. Firstly, technologies such as 3D printing/distributed manufacturing impact the conventional understanding of infringement as occurring at a certain place. The question as to where IP is infringed may thus become difficult to answer with protecting (possibly remote) application of patented technology representing a new frontier for patent rights. Secondly, increasingly distributed activities may render proper definition of mutual contributions to certain results very important. Agile registration of rights with the purpose of documenting scope and origin of innovation is thus desirable. Also, the increased computing power of AI can remove from the camp of science fiction the concept of machine-made invention. Naming as the inventor/creator an organization/enterprise which controls the activity of AI apparatus making an invention might thus become a somewhat disquieting yet realistic perspective.
By way of comment, one may note that the learning process in a machine operating on the basis of a neural network (NN) paradigm may identify an information set (model) embodying certain concepts adapted to solve a previously unsolved technical problem underlying the (machine-made) invention.
How can such a model be described in compliance of Art. 83 EPC, that is in natural human language, and - more to the point - claimed in compliance of Art. 84 EPC by avoiding that the extent of protection should be very strictly limited? How can such a model be searched and compared with the prior art in order to ascertain compliance with Art. 52 to 56 EPC, with the prior art possibly including, in addition to earlier conventional patent documents, also earlier documents related to machine-made inventions and, more to the point, possible prior public "disclosures" of such inventions? How can one evaluate the inventive step involved in such a “machine-made" invention, which may simply derive from a very high number of repeated of trial-and-error loops largely beyond the ability of the human mind? Machine-made inventions, if possibly patented, may render the question as to if IP is infringed a - far from trivial - question deserving close scrutiny: so-called equivalents may come into play and applying, say, the function-way-result (FWR) test may be far from easy: should perhaps AI be applied for that purpose?
Plenty of food for thought for the new generations, indeed.
3. The presentation Examining Blockchain Inventions in The Hague indicates the formation of CII teams in DG1, across sectors and across DGs leading to the formation of a network of CII experts including 1 or 2 examiners in each large directorate, and a first line contact person for all CII related questions in mix divisions. This initiative should enable working level knowledge of all examiners concerning CIIs and assessing skill sets within the directorate to define a training plan. Hopefully the initiative should facilitate adoption of "real world" approach in evaluating (also) clarity issues (Art. 84 EPC) in EP proceedings.
4. The event of 4 December in The Hague focused on patenting blockchain, that is patenting blockchain-related inventions. With patent information and copyright mentioned as possible applications of blockchain, dynamic distributed databases that update as assets are exchanged on a digital platform (or payments are made) were also mentioned as possible applications along with registration of patents, reducing administration, cost and speed up patenting and licensing process.
Indeed, the European Register is essentially a (distributed) ledger, which is desired to be immutable and incorruptible, with associated timestamps, for which controllable access (via cryptography, for instance) prior to publication may represent a key factor. Also, the patenting process and maintenance in force involves payments, both to the office and from the office (for fee refunds, for instance) as well as automated transaction and real-time monitoring. Consequently, the issue of blockchain patenting (that is the possible use of blockchain technology in support of the patenting process) may deserve some consideration. Investigating possible developments towards blockchain patenting, also as a tool for securing a deadline (filing date, priority date, etc.) as an alternative to more conventional means, may thus represent a field of possible activity by the EPO and epi bodies.