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The Examination Guidelines states that the followings are considered to be the rules and methods for mental activities under Art. If a claim is defined by rules and methods for mental activities in the whole contents, it shall not be granted a patent right. Although the Patents Act of does not contain any specific provisions for software, there are general requirements that are pertinent. This is qualified by section 13 1 of the same Act which provides that the following inventions are not patentable: discoveries, scientific theories and mathematical methods; schemes, rules or methods for doing business, performing purely mental acts or playing games.

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Business methods and computer implemented inventions are therefore patentable subject matters under certain conditions. According to the draft amendments to the Thai Patent Act, business method is a non-patentable subject matter. Philippines, Singapore followed by Malaysia and China are leading the way. In the surveyed countries that exclude computer programs from patentability, can such programs be patentable when they form part of a wider patentable invention e.

Can computer software or algorithm form part of a wider patentable invention? Following Article 2 of the Patent Law and Rule 21 of the Implementing Regulations, an application relating to a computer program is only the subject matter of patent protection if it constitutes a technical solution. To satisfy this requirement, the application must: i solve technical problems ii use technical measures, and iii be capable of producing a technical effect. An application will only constitute a technical solution when it meets all three of these criteria. If the computer program is claimed as part of a system interacting with hardware, it may be patentable.

According to the Patent Examination Guidelines of , a computer programme claimed by itself or as a record on a carrier is not patentable, irrespective of its content. If, however, the subject-matter as claimed makes a technical contribution to the prior art, patentability should not be denied merely on the ground that a computer programme is involved in its implementation. This means, for example, that programme-controlled machines and programme-controlled manufacturing and control processes should be regarded as patentable subject-matter.

It follows also that, where the claimed subject-matter is concerned only with the programme-controlled internal working of a known computer, the subject-matter could be patentable if it provides a technical effect. To fall within categories of patentable inventions under Section 21 of the IP Code a claim directed to a computer program should be drafted in manner wherein the program instructions are e.

Excluded subject matter

Commentators have suggested that it does not. It appears that while computer programs per se are excluded, that software-related inventions such as a business method implemented in a computer are considered as patentable subject matter.

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However, algorithms are per se of the mathematical nature, therefore, the Guidelines should also apply to algorithm. Below are two examples of software with and without a technical effect. The classification of digital images, videos, audio or speech signals based on specific features e. The classification of text documents solely in respect of their textual content.

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The reason for this is that such classification is considered to have simply a linguistic and not "technical" purpose. Process for classifying diseases in orchid Dendrobium using a system to support decision.


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Computers have been autonomously creating inventions since the 20 th century. Although Dr. The evidence reveals that the technology can function with its own independent mind. AI having capacity to invent has major implications for patents inventorships and ownerships. Ambry Genetics, F. An example of a case identifying a concept relating to a data comparison that is analogous to human mental work as abstract is Mortgage Grader, Inc. First Choice Loan Servs. The patentee in Mortgage Grader claimed a computer-implemented system for enabling borrowers to anonymously shop for loan packages offered by a plurality of lenders, comprising a database that stores loan package data from the lenders, and a computer system providing an interface and a grading module.

An example of a case identifying a concept relating to organizing or analyzing information in a way that can be performed mentally as abstract is Synopsys, Inc. In Synopsys, the patentee claimed methods of logic circuit design, comprising converting a functional description of a level sensitive latch into a hardware component description of the latch. Although the patentee argued that the claims were intended to be used in conjunction with computer-based design tools, the claims did not include any limitations requiring computer implementation of the methods and thus do not involve the use of a computer in any way.

An example of a case identifying a concept relating to organizing or analyzing information in a way that is analogous to human mental work as abstract is Content Extraction and Transmission LLC v. Wells Fargo Bank, N. In Content Extraction, the patentee claimed an application program interface comprising a scanner that extracted data from hard copy documents, a processor that recognized specific information from the extracted data, and a memory that stored the recognized information.

An example of a case identifying a concept as an idea having no particular concrete or tangible form as abstract is Ultramercial, Inc. The patentee in Ultramercial claimed an eleven-step method for displaying an advertisement ad in exchange for access to copyrighted media, comprising steps of receiving copyrighted media, selecting an ad, offering the media in exchange for watching the selected ad, displaying the ad, allowing the consumer access to the media, and receiving payment from the sponsor of the ad.

Another example is Versata Dev. SAP America, Inc. The patentee in Versata claimed a system and method for determining a price of a product offered to a purchasing organization, comprising arranging a hierarchy of organizational groups and a hierarchy of product groups, storing pricing information associated with the organizational and product groups, retrieving and sorting applicable pricing information, and determining the product price using the sorted pricing information.


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Another example of this type of concept is In re Brown, Fed. App'x , Fed. The applicant in Brown claimed a method of cutting hair that effectively allocates hair weight in opposition to head shape, comprising identifying a head shape, designating the head into at least three partial zones, identifying at least three hair patterns, assigning at least one of the hair patterns to each partial zone to either build weight or remove weight, and using scissors to cut hair according to the assigned hair pattern.

In re Grams, F. Words used in a claim operating on data to solve a problem can serve the same purpose as a formula. In the past, the Supreme Court sometimes described mathematical concepts as laws of nature, and at other times described these concepts as judicial exceptions without specifying a particular type of exception. More recent opinions of the Supreme Court, however, have affirmatively characterized mathematical relationships and formulas as abstract ideas.

An example of a case identifying a concept relating to a mathematical relationship or formula as a judicial exception is Diamond v. The Supreme Court noted that a mathematical formula such as the claimed Arrhenius equation is an exception like a scientific principle or natural phenomenon, is non-statutory subject matter an exception. See also Mayo Collaborative Servs. An example of a case identifying a concept relating to performing mathematical calculations as abstract is Bancorp Servs.

Sun Life Assur. Another example is Digitech Image Techs. Electronics for Imaging, Inc. The patentee in Digitech claimed methods of generating first and second data by taking existing information, manipulating the data using mathematical formulas, and organizing this information into a new form.

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The court explained that such claims were directed to an abstract idea because they described a process of organizing information through mathematical correlations, like Flook's method of calculating using a mathematical formula. Seed Co. Kalo Inoculant Co. Morse, 56 U.

Patentability of computer programmes

The courts have identified the following concepts and products as examples of laws of nature or natural phenomena:. See Rapid Litig. See also Tilghman v. Proctor, U.

Inventing Software: The Rise of "computer-related" Patents

A claim that does not recite a law of nature or natural phenomenon is eligible Step 2A: NO at Pathway B unless the claim recites another exception such as an abstract idea, or a product of nature. For example, the isolated DNA of Myriad and the primers of Ambry Genetics were described as products of nature by the courts. As explained in those decisions, products of nature are considered to be an exception because they tie up the use of naturally occurring things, but they have been labeled as both laws of nature and natural phenomena.

See Myriad Genetics, Inc. It is important to keep in mind that product of nature exceptions include both naturally occurring products and non-naturally occurring products that lack markedly different characteristics from any naturally occurring counterpart.


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  • As the Supreme Court made clear, neither naturally occurring compositions of matter, nor synthetically created compositions that are structurally identical to the naturally occurring compositions, are patent eligible. Thus, a synthetic, artificial, or non-naturally occurring product such as a cloned organism or a human-made hybrid plant is not automatically eligible because it was created by human ingenuity or intervention.

    Ag Supply, Inc.