The role of software-based inventions in the Fourth Industrial Revolution (4IR)

In this post, I would like to discuss a recent EPO report that provides an overview of the major technology trends observed, based on EP patent information, across a range of technology fields associated with the Fourth Industrial Revolution (4IR). More specifically, I would like to discuss the role of software patents in 4IR and the changes needed in the current examination practices applied by the EPO in assessing the patentability of software-based innovations. Although the report is directed towards the European market, and only deals with EP patent information, we can expect that similar trends are observed in other countries.

I have summarised, with the help of the EPO, the main findings of the report below:

a) Between 2014-2016 over 15K patent applications have been filed at the EPO in 4IR related application fields.

b) IoT smart devices lead the patent filing race, while 3D systems, Artificial intelligence and User interfaces are among the fastest-growing fields.

c) Europe (EPC), the USA (US) and Japan (JP) were the main innovation centres in 2016.

d) In Europe, Germany and France lead the way. As you would expect Germany stands out in the application domains of Vehicles, Infrastructure and Manufacturing, while France leads in enabling technologies such as Artificial intelligence, Security, User interfaces and 3D systems.

c) 42% of all 4IR patent applications filed with the EPO between 2011 and 2016 originate from twenty companies, most of them based in Asia.

As the report indicates, the Fourth Industrial Revolution (4IR) goes further than the previous industrial revolutions, which aimed at the automation of physical work. 4IR aims to provide large-scale automation of entire groups of tasks, including repetitive intellectual tasks previously performed by humans. Therefore, it is no surprise that the majority of patent filings are directed to software-based innovations addressing problems in a broad range of technical fields including robotics, Internet of Things (IoT), Artifical Intelligence (A.I), quantum computing, 3D printing, autonomous vehicles, and so on. We should expect, with a certain confidence, that the number of software-based patent filings will continue to grow over time. However, I fear that these software-based innovations are currently not fairly assessed by the EPO, or by any other patent office around the world.

Despite Mr Battistelli’s statement on the readiness of the EPO to address the patentability of 4IR software-related inventions, I would argue (and I believe I am not alone) that current examination practices would need to be revised.

I am not talking about radical changes here. Personally, I would be satisfied if the EPO is willing to reconsider the way the problem to be solved is formulated by the examiners when the claim contains both technical and non-technical elements. Currently, the non-technical elements (even if they are not previously known) are considered to be part of the problem to be solved, which in my view is not in-line with the established problem-and-solution approach.

I am sure that the EPO, and the other patent offices around the world, would eventually realise that if we want to make available to those investing heavily in 4IR technologies the economic benefits derived from the established patent system, the current examination practices of software-related innovations need to be adapted.

In the meantime, we will continue working with the establish examination practices to help our clients protect their software-based innovations.

I know that my wish is unlikely to come true anytime soon, but there is no harm in staying optimistic. This reminds me of a quote that I recently saw going through T1 of the Dublin airport, which reads “Dream a little dream. Reality isn’t going anywhere”.

It will be great to know what other people think of the new developments in 4IR, the significance of the number of patent filings in this space, and the current examination practices of the EPO (or other offices).

Nikos Minas

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