Can bluetooth patents be claimed?
Patent protection - an often neglected factor when converting to Industry 4.0?
There are also challenges in the area of patent law that many companies are already facing today. It seems doubtful that the legislature will see a need for action, so that it is necessary to adapt to the requirements of Industry 4.0 on the basis of the applicable patent law. This mainly affects the following four areas: innovations in software, interaction between several players, use of standardized communication technologies and new business models.
Innovations in software
Many innovations are already software-based or are in the area of software-technical components. The innovation can lie in the software itself, be implemented by software or have points of contact with software components. In this regard, the question must be asked whether an invention related to software technology is even eligible for patent protection. German and European patent law provide almost word for word that programs for data processing systems as such are exempt from patentability (§ 1 (3) No. 3, (4) PatG and Art. 52 (2) lit. c, (3 ) EPC). However, this does not mean that a technical problem solved by means of software would also be excluded from patent protection. If a technical problem is solved in a non-obvious way by a method carried out by a data processing system and a corresponding computer program product, this is also a technical means that is available for patent protection (Schulte / Moufang, PatG, 9th edition, § 1 , RN 118 ff with numerous positive and negative examples). This is regularly the case, for example, when it comes to software that is used for regulating, controlling or measuring, takes certain technical conditions (such as the hardware) into account or uses sensor data (such as a smartphone). The line between a patentable invention on the one hand and an administrative procedure or an abstract idea that is only carried out with the aid of a computer, on the other hand, is usually extremely narrow and has to be assessed on a case-by-case basis. Experience has shown, however, that it is worth looking for patentable inventions when innovations are created using software. Because patent protection typically proves to be immensely more valuable than the copyright protection of computer programs (§§ 69a ff. UrhG), because (only) through it the functioning of computer programs can be effectively protected against imitation.
Interaction of several actors
Another challenge arises from the fact that individual steps of a computer-implemented method can be carried out particularly easily by different devices (client, server, smartphone, etc.). Networked, decentralized systems and communication technologies from NFC to Bluetooth to LTE make it possible to record data and also to transport it over great distances and, in particular, across national borders. These devices can not only be located at any location, but can also be operated by different companies or by the end user who may not be commercially active. For the formulation of the patent claims, this means that a patent claim should cover the individual steps carried out by different devices (actors) as isolated as possible (so-called single actor claim). Multi actor claims, on the other hand, can prove to be disadvantageous in terms of legal enforcement. If the features of the patent claim are not realized by one company, but only through the cooperation of two or more companies, the patent may not be infringed by any of the companies (OLG Düsseldorf, 10.12.09, I-2 U 51/08, here were due to the circumstances of the individual case, however, partial acts committed abroad that the perpetrator made his own for an infringement that occurred in Germany, attributed to him and treated as domestic).
Use of standardized communication technologies
Patent law freedom-to-operate considerations arise in particular when using cyber-physical systems that communicate with one another via the components of a data infrastructure. End devices such as machines, vending machines or containers, also from different companies in a value chain, should in this way exchange information with one another autonomously. For smooth communication, the respective interfaces must be compatible with each other. Technological standards are the method of choice here in the vast majority of cases. They define the requirements for the respective product or process (e.g. standards such as UMTS or LTE in cellular technology) and are often specified, recommended or promoted by standardization organizations. Most standards are based on a large number of patents that a market participant inevitably has to make use of when using the standard (so-called standard-essential patents or SEPs). If a public domain standard is not available, a company therefore needs sufficient usage rights if it wants to use standard technologies. In addition, claims from SEPs are much more likely to be asserted than non-SEPs (Ref. Ares (2014) 917720 - 25/03/2014, p. 125). It is difficult to research whether a standard can be used without violating third-party property rights due to the large number of property rights such as exist in communication technologies (ECJ, July 16, 2015, C-170/13, item 62). An examination of the protocols and legal framework conditions of the standardization organizations involved can provide helpful information. The relevant owners of SEPs were often involved in the standardization process and, as a prerequisite for participation, have committed themselves to a certain handling of their SEPs, in particular to the licensing of the SEPs. This can lead to increased obligations for the SEP owner if he wants to enforce prohibition claims from the SEPs (ECJ, July 16, 2015, C-170/13). The acquisition of standardized technologies from established market providers can also help to minimize risk. With these, it can be assumed that their business model is secured through the acquisition of sufficient usage rights. As the primary provider of standard technologies, they are more likely to be approached by patent infringers than their numerous customers (especially with the aim of generating license income from them). If the customer is (also) accused of a patent infringement, there are at least contractual warranty and recourse claims, which - apart from the risk of insolvency of the contractual partner - may expire earlier than the patent infringement claims of the patent owner. In contrast, the enforcement of SEPs does not necessarily imply a ban on use. The enforcement of the right to cease and desist from an SEP can represent abusive behavior within the meaning of Art. 102 TFEU and therefore - at least in Germany and Europe - be inadmissible under antitrust law. The so-called FRAND objection can then be raised against the asserted injunction claim, i.e. that the patent owner must grant a right of use under fair, reasonable and non-discriminatory conditions. With regard to the requirements for an effective FRAND objection, the ECJ has now made more precise specifications (ECJ, July 16, 2015, C-170/13). However, details are still in dispute.
New business models
For the patent protection of new business models through Industry 4.0 it applies that it is closed to pure business models according to the German Patent Act and the European Patent Convention (§ 1 (3) No. 3 PatG or Art. 52 (2) lit. c EPC). However, it should be checked whether the specific technical implementation of the business model can be protected by patent law, especially if new technical methods are used within the framework of the new business model. However, new business models through Industry 4.0 will probably also be based on innovations that cannot be effectively protected by patents under the currently applicable law. The unique selling points of big data-based models will therefore have to be protected primarily through an actual and contractual safeguarding of sovereignty over the data and unauthorized access to the data.
- Innovations in software in the context of Industry 4.0 are not excluded from patent protection per se. There is already good practice in the courts that can be used to assess patentability.
- Attention should be paid to the formulation of patent claims when features of a claim can be realized by different actors and / or in different countries.
- The use of standardized technologies can mean the use of a large number of patents. An examination of the protocols and legal framework of the standardization organizations can help to minimize risks. Because of a possible FRAND objection, there is not necessarily a threat of a ban on use.
- The patent protection of new business models is excluded for pure business models, but the technical implementation can be patentable.
This article first appeared in the JUVE Handbook Commercial Law Firms 2017/2018.
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