The patent system is credited as the crucial legal foundation from which the first industrial revolution was built. Milestone inventions such as the steam engine, power looms, the Cotton Gin and many more were all granted patent protection and by providing manufacturers with legal rights to prevent copying, innovation and industry flourished.
From the mechanised production of the first industrial revolution, innovation in the manufacturing industry shifted focus to mass production and electrification at the start of the second Industrial revolution, and again to advances in computerisation, robotics and automation during the third industrial revolution.
Fundamental concepts defining patentability, the threshold at which innovation should be granted protection, were formulated from the hardware innovations of the first industrial revolution. As the third industrial revolution gathered pace, despite the existing concept of patentability specifically excluding ‘software as such’ from protection, the UK and European patent systems have evolved a concept of ‘technical character’ to enable patents to be granted for computer implemented inventions to protect innovation in software.
Technical character may be found in features of a computer implemented invention that improve the efficiency or security of a process, or which reduce the use of computer resources, or the rate of data transfer in a communication link. Notably for the manufacturing industry, technical character may also be found in features of a computer program which have a technical effect on a specific manufacturing process.
Standing now at the start of the fourth industrial revolution that is characterised by the significant modern developments in cyber-physical systems, we have moved into the age that manufacturers are calling Industry 4.0.
Industry 4.0 promises to digitalise and optimise the manufacturing process. Using enabling technologies such as Artificial Intelligence (AI), Machine Learning (ML), Neural Networks, Blockchain, Industrial Internet of Things (IOT), and big data analytics; manufacturers are already moving towards the ‘smart factory’ where processes and supply chains are simulated and optimised with every machine connected and monitored for the mass customisation of products.
Following the trend of the previous industrial ages, the patent system also faces challenges in providing the right environment to stimulate innovation. Innovations in AI/ML face challenges in falling within the ‘specific technical implementation’ test and patentability concepts will again need to evolve to cope with innovations in computer implemented simulation that may have a technical effect in a virtual world not existing outside the computer.
History suggests the patent system will evolve to provide protection for Industry 4.0 innovations. Indeed, Venner Shipley are actively engaged with law-makers in the development of new patentability guidelines for computer implemented inventions and are also handling an important appeal referral to the EPO Enlarged Board of Appeal, that could result in an important precedence in the patentability of computer implemented simulations.
If you are innovating in Industry 4.0, please contact Venner Shipley’s team of attorneys to discuss how you might protect your investment with a ‘smart patent’.
Paul Misselbrook is a dual-qualified patent and trade mark attorney and a qualified IP litigator. He heads up Venner Shipley’s Manchester office.
