Software patenting and digital creative arts in Europe
Practical guidance to improve eligibility in this challenging area

Securing a patent for software inventions in Europe is not without its challenges.  At first glance it seems that the European Patent Office (EPO) explicitly excludes the patentability of computer programs, giving rise to a common misconception that it is impossible to patent most software inventions. However, the application of the EPO’s exclusions does, in fact, allow for the patentability of software in certain situations.

The body of case law surrounding digital creations, and the software that produces them, is a particularly interesting and ever-developing area. Digital creative arts and computer graphics, particularly for use in simulation, animation, and video gaming, are rapidly growing markets in the software space. Existing strong growth has been catalysed by an especially sedentary and indoor 2020, with the gaming industry reportedly up 20% in 2020 and the animation and VFX market due to grow by 9% in 2021. We can therefore expect protection for inventions in this space to increase in value alongside its market growth.

In this article we recap the conditions for software patentability, before exploring the digital creative arts and providing practical guidance on how to obtain European patent protection in this field.


The two hurdles – a recap

In order to obtain a European patent in the software field, the invention must not be excluded per se, and must provide a technical solution to a technical problem. These two hurdles are governed by Article 52(2) EPC (excluded inventions) and Article 56 EPC (inventive step), respectively.

To avoid the exclusion under Article 52(2) EPC, applicants must simply recite hardware in their independent claim; a popular form is to claim a “computer-implemented method”. Any apparatus claim will also, of course, avoid the exclusion. Convincing the EPO that a claim is inventive, however, often involves a discussion of what is a technical problem and what is not. “Technical” is the EPO’s word of choice when it comes to its guidelines for patenting any software related invention, and yet its definition is difficult to pin down and is subject to change. In order to explore the definition of “technical” for the digital creative arts, we must therefore dive into the murky waters of EPO case law.


Technical – Creation and editing toolkits

One could be forgiven for thinking that obtaining patents at the EPO for inventions relating to digital creative arts would be a near-impossible task: the end-product never leaves the digital realm and does not control any physical process, and the phrase “a mere presentation of information” lurks around every corner. However, patents granted by the EPO in 2020, with claims directed to: “Framework for graphics animation and compositing operations”, “Systems and methods for appearance mapping for compositing overlay graphics”, and “Demand based texture rendering in a tile based rendering system”, show that there is some hope for applicants.

The EPO’s practice in relation to mathematical methods can give us hints as to how such patents can be obtained. In general, the EPO is open to improvements in computational efficiency if the invention achieves them by virtue of its application to a specific field of technology. A new, faster, Fourier transform, for example, applicable and advantageous for generic data, will likely prove difficult at the EPO. In contrast, a method including algorithmic steps for a load balancing procedure, the steps being performed at a particular point during a rendering process, is specific: the algorithm was conceived to battle constraints unique to rendering and achieves its technical effect only when used to render video. By preparing a patent specification with a specific purpose in mind, and, crucially, with that purpose explicit in the claims, applicants can expect a reasonable chance of success. Digital creative arts, being an industry notorious for frustrating compilation times and herculean hardware requirements, will continue to reap the rewards from innovation in this area for years to come, and an industry leading portfolio could prove to be exceptionally valuable.

Applicants can also look to frame their inventions through the lens of one of the EPO’s example technical purposes (see Guidelines for Examination (G-II, 3.3)). Of particular relevance may be “digital audio, image or video enhancement or analysis”; seemingly broad and patentee friendly goalposts for those in either live action or animation. Effective storage and transmission of the vast data files produced by video and audio manipulation could also offer technical refuge, with encoding and compression of such files another of the EPO’s explicit areas of allowable subject-matter.

The interplay between technical purpose and simulation is deserving of particular note. Headline-worthy computer graphics often rely on simulation of natural phenomena, in order accurately to reproduce those phenomena on screen. Animated films and video games are littered with simulated entities that often make or break the immersion: the movement of water, the reflection of light, the sway of a tree in the wind. The Enlarged Board of Appeal’s (EBoA) recent decision in G 1/19 notes that a simulation’s basis on technical principles underlying the simulated system is not sufficient to establish a technical effect. The fact that modelling the path of a fluid or ray of light are each grounded in the laws of physics will likely not, alone, push an invention over the technical finish line. Unfortunately, the EBoA did not comment on the EPO President’s reference during the hearing to ray tracing, instead giving an altogether less helpful example that the simulation of the movement of a billiard ball in a computer game does not solve a technical problem. Following this decision, a simulation will be analysed in much the same way as any other algorithm invention: does the simulation contribute to solving a technical problem? There is some evidence that increasing user engagement via improved realism can be a technical effect (T 0339/13 – with the wonderful EPO keyword: “Technical effect of physically interacting with a virtual pet”), so focusing on the realism achieved by simulations such as ray tracing could be an effective argument, albeit an untested one in a post G 1/19 world.


Technical – User Interfaces (UIs)

For content creators and editors, not only the powerful “under-the-hood” software is important; the UI through which they create can be instrumental. Inventions for UIs generate a significant number of decisions from Technical Boards of Appeal each year, and have a dedicated section in the EPO’s Guidelines for Examination (G-II 3.7.1).

Well established by the Boards of Appeal is that “reducing the cognitive burden” of the user is not a legitimate technical effect (see, for example, T 1670/07). Instead, in order to be patentable, UIs must “credibly assist” a user in performing a technical task. Technical tasks, according to the above Guidelines, include providing a mechanism to enable user input which reduces the number of necessary inputs to perform a certain function and facilitating more reliable control through the interface. Less likely to be allowable are aesthetic considerations, or interface features which direct the content of the data input to the interface.

Publishers of software for animation, VFX, and video editing can look to obtain protection for their UI if the UI provides an objective improvement for the user. In other words, if the alleged improvement would be achieved for every possible user, then a technical effect is achieved. If, instead, only certain users would benefit from the invention (perhaps because the arrangement of control elements suits them, but would irk others), a technical effect is doubtful.

Of note is the recent distinction drawn by the Board in T 1648/13 between the main and first auxiliary request in that case. The invention related to video editing software presenting two views of a video stream, one horizontally, one vertically, with a partially transparent overlapping portion allowing both streams to be viewed and interacted with simultaneously. The Board was satisfied that the additional functionality this provided to a user was a technical effect, but contended that this effect was only captured by the claim when steps including changing the display in response to user input were added in the first auxiliary request. Going beyond merely presenting the information, and reciting explicitly the user’s interaction with the interface, was the key here.


Practice points

As always when attempting to obtain protection for software in Europe, it is important to identify and emphasise technical features, and this is most effective at the drafting stage. If an application is filed without concrete detail tying claim features to technical effects, EPO examiners can be difficult, but not impossible, to bring on side. Framing the invention in terms of efficiencies associated with application of the method to a specific problem or highlighting advantages achieved by all users of the software, regardless of their subjective preferences, are good foundations for arguing inventive step in Europe. More standard technical effects such as data compression and security can be relevant to this field, but, with careful drafting, applicants need not shy away from more creative technical effects such as improved realism and video enhancement.

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