Licensing Computer-Implemented Inventions: Challenges In A Heterogeneous Patent World

A new virtual reality vs. the patent system

The legal system of every country has evolved through different mechanisms to adapt to technological development and changes. While Civil Law countries adapt the codes to new realities through complex procedures, Common Law countries rely on the interpretation given by courts to the same laws in the light of the new social and technology environment.

Intellectual property rights are inevitably linked to technology advances and development. This is why perhaps they have been subject to international treaties very early, to ensure that all countries will provide protection according to certain basic principles that are expected to be common to all nations. Perhaps the best example of such standardization is the Agreement on the Trade Related aspects of Intellectual Property (TRIPS), which has been adopted by every country that is part of the World Trade Organization (WTO).

In spite of such treaties, the one definition that practically no international treaty includes is the definition of what is considered in each country an "invention". This lack of definition has leaded to different approaches, especially with regard to what is now known as "computer-implemented inventions" in the prosecution and enforcement of IP rights, particularly regarding patents.

Due to the fact that computer programs are subject to copyrights in many countries, but certain procedures may be patented in others, this area of technology is facing great troubles with regard to the certainty and scope of the rights conferred to the owners of intellectual property thereof.

Upon analyzing the development of patent systems, particularly with regard to patentable subject matter, the "tangible" aspect of an invention has been crucial for determining patentability. From the necessity to provide prototypes to the deposit of biological materials under the Budapest Treaty, the need to demonstrate a tangible result, or at least, that someone skilled in the art may reduce to practice an invention, has been one of the requirements of almost every patent system. This need is probably inherent to the definition of invention, conceived as a human creation that must be materialized or has the potential to be materialized. Basically the concept implies that something is not a creation if it lies only in the mind of a person.

Accordingly, in the beginning of the patent systems everything abstract was not considered an invention by default. This includes everything that needs to occur inside the mind of a person, that needs a human being to process information through his mind and then achieve a result or conclusion that is useful to make decisions that may, or may not, have a physical result.

Under this principles, a number of countries exclude from the definition of invention expressly business methods, mathematical methods, game rules, mental...

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