Big Data - The Route to Patentability in Europe
Our world is becoming increasingly connected. We can order products from online retailers and track the package from the moment it is loaded into the delivery van right to point it reaches our front door. Our health and fitness levels are monitored by wearable sensors and the data is fed into an app allowing us to track our wellbeing. Google can even predict outbreaks of ‘flu more quickly than public health authorities by analysing the geographical concentration of certain search terms.
The rate at which data is created is astonishing. In 2010, it was stated that every two days we create as much information as we did from the dawn of civilization up until 2003. This rate will only continue to increase. The number of devices collecting information is set to explode from ten billion units now to over fifty billion units within the next five years.
These connected devices themselves will of course be subject to many patents. But, what about the technology that converts the data generated by these devices into meaningful and useful data? This article investigates the patentability in Europe of this conversion process, which is sometimes called ‘data analytics’ or ‘big data’.
In Europe, an invention as a whole must have technical character. Unfortunately, a new method or algorithm for analysing data, no matter how innovative or sophisticated, is therefore unlikely to be patentable on its own in Europe in light of decisions such as T 208/84 (see useful links below).The application of that method or algorithm to specifically defined data which results in a technical effect may be patentable.
This effectively gives two conditions which must be met in order for the method to be patentable:
1. The data to which the method is being applied to must be defined.
2. The application of the method to the defined data must result in a technical effect.
Generally, the first step of defining the data to which the method is to be applied will be relatively straightforward. For example, if you are in the business of collecting and analysing mobile phone location data, then the data to which the method is applied can be defined as mobile phone location data.
On the other hand, the second step of determining whether or not the effect of applying the method to the data is sufficiently technical can be difficult. It is difficult because, despite significant amounts of case law on the subject, determining whether or not a particular effect is technical must be determined on a case by case basis and remains very subjective. In this situation, it can help to consider whether or not the application of the method to the data is solving a technical problem.
This is probably best illustrated with the following examples:
Example 1: balancing network load
Let’s take our previous example of the data being mobile phone location data. Let’s say that a particularly innovative method for analysing the data is able to take the mobile phone location data as an input and use it to track the mobile phone to predict the movement of the mobile phone and then balance cellular network load. In this case, the problem solved by applying the innovative method to the collected data is the problem of balancing network load.
Example 2: relevant advertising
Let’s now consider that a different but equally innovative method is applied to the mobile phone location data. This method is able to take the mobile phone location data as an input and use it to select more relevant advertisements to push to individual users depending on their location. In this case, the problem solved by applying the innovative method to the collected data is the problem of producing advertisements which are more relevant to individual users.
Thus, for both examples, the methods employed are innovative and potentially very valuable. However, the respective problems which are solved by the methods are likely to be interpreted by the European Patent Office (EPO) differently as to whether or not they are technical problems and thus whether or not the effect resulting from the application of the method to the specifically defined data results in an effect which is technical. Specifically, for the first example, the EPO will accept that the problem of balancing network load is technical. On the other hand, for the second example, the EPO will not accept that the problem of producing adverts which are more relevant to individual users is technical.
The EPO justifies this approach by saying that the problem of producing more relevant adverts, even if performed on a technical means, is actually a business related problem. However, under Art. 52 EPC business methods as such are specifically excluded from patentability. Therefore, the business related problem cannot be a technical problem and the application of the method in the second example, no matter how innovative or on what device the method is performed, cannot have a technical effect. Case law at the EPO means that because of the lack of a technical effect the invention will lack an inventive step – see the leading case T 641/00 (see useful links below). So, can anything be done to try and patent the application of an innovative data analysis method which, on the face of it, appears not to solve a technical problem? Well, it depends.
There are instances when, although the overall method may not be deemed to solve a technical problem by the EPO, there may be aspects of the idea which solve a ‘sub’ technical problem when the idea is implemented using technical means. Such aspects could, in principle, form the basis of a patentable idea. For example, consider again the method of processing mobile location data so as to send out targeted adverts to individual mobile users.
From the discussion above, the EPO will interpret the general problem solved by the method as not being technical. However, the method will almost certainly be implemented using technical means such as a specifically adapted data processing network. This network may, itself, have been adapted so as to improve the security, speed and/ or reliability of the network in an innovative way. For example, the mobile location data may be collected using an innovative arrangement which prevents overloading of data channel capacity when many users are gathered in the same geographic location, whilst ensuring that sufficient mobile location data continues to be collected. This arguably improves the reliability of the system.
The problem of improving the security, speed or reliability of the technical implementation of an innovative data analysis method, when solved using technical means, is, in principle, a technical problem. If the EPO can be convinced of this, then there is a chance that the technical means in question could form the basis of a patentable idea (subject to the usual requirements of novelty, inventive step and industrial applicability).
It must be said, however, that the EPO is unlikely to accept arguments related to a technical problem solved by a feature of the technical implementation of a data analysis method (which, overall, appears to relate to a business method type problem) if no mention or teachings in the patent application allude to that problem being solved by that feature. In such a case, the EPO is likely to argue, perhaps rightly, that the problem is not derivable from the patent application as fi led, and that it is therefore not a valid technical problem to consider.
When initially creating a patent application for a data analysis method which could be construed by the EPO as relating to a business method type problem, it is therefore important to ensure that any features related to the technical implementation of the method which (at least arguably) solve a technical problem are discussed in detail in the application, along with any technical advantages that they might have. This approach will ensure that during prosecution, arguments presented to the EPO regarding a technical problem solved by the invention can be supported by what has been disclosed in the application. This ensures that the arguments have weight and ensures that the EPO will consider such arguments more seriously than if those same arguments were presented without such support.
Novel and innovative methods or algorithms for analysing data in a ‘big data’ context are potentially patentable as long as the data which is being processed is well defined and the method is applied to the data in a way which results in a technical effect. For a method which results in an effect which might be judged non-technical by the EPO (for example, if it is related to solving more of a business type problem), the applied method itself may not be patentable. However, there is still the possibility that a feature related to the technical implementation of that method solves a technical problem. For example, that feature may ensure that the technical implementation of that method operates with greater security, speed or reliability. Patent protection directed to such features could therefore still be valuable. In order to get the best possible chance of obtaining such patent protection at the EPO, you must ensure that such features are adequately described in the patent application and that any technical advantages associated with them are made clear.