A Nameless Book. Book review.

(IPRinfo 2/2011)

Martin von Willebrand
Attorney-at-law, Partner
HH Partners, Attorneys-at-law Ltd

A Different Kind of Dimension – Aspects on Software Patents, edited by Perttu Virtanen (other authors Kenneth Oksanen, Jukka Kemppinen, Eljas Soisalon-Soininen, Nari Lee). Helsinki Institute for Information Technology HIIT 2010. ISBN 978-952-60-3372-3. 165 p.

The most interesting part of the book is the outcome of a multidisciplinary project: a software tool to document algorithms from executed software and compare automatically such documentation to human written patterns (e.g. patterns implementing patented claims). This is intended to serve the process of establishing whether a given software (executable) infringes a patent (a human written pattern) or not.

The background is evident: establishing patent infringements in software can be markedly difficult, if the patented algorithm is not directly visible from the input, output or other usage of the software. Reviewing software executable files is time and resource consuming and – in case of large software packages – this is so even if the source code would be available for inspection.

The tool is not a one stop solution to the complicated question of establishing or dismissing patent infringements, but rather a tool to help in the process and automate a partof it. The tool has been named as InnoGuard.

The book did not provide details of eventual commercialization of the tool and related services. While it seems likely that real world application of the tool will require further development, it also seems possible that those aiming to use resources effectively in patent infringement analysis could benefit of the tool even in its early stages, if used in real world scenarios together with its developers. The tool seems best suited to complement an at least moderately active patent strategy, e.g. by reviewing key competitors’ or a relevant market entrant’s products against your patent portfolio.

The book is a collection of seven articles with an introduction and conclusion by Perttu Virtanen. While Chapter 2 (by Kenneth Oksanen ) presents the tool and comparison results, Chapter 5 (by Kenneth Oksanen, Perttu Virtanen, Eljas Soisalon-Soininen and Jukka Kemppinen ) complements this by an extremely useful discussion on typical similarities and dissimilarities in software algorithms from the perspective of coverage of patent claims. Chapter 2 is somewhat difficult to read for a non-technical person, but the main points were still clear enough.

Chapters 3 and 4 (by Perttu Virtanen) discuss European Patent Convention and establishing the subject matter of software patents. Virtanen notes that the notion of ”software patent” is misleading, since the subject matter of patents is rarely or never software, but mostly an algorithm implemented in software. The purpose of this clarification seems to be to prevent eventual wrong starting point in the discussion on patentability of algorithms implemented in software.

While the note on terminology is probably correct, it is odd that the terminological discussion doesn’t much mention the notion ”computer implemented inventions” which is quite often used. The term ”CII” resolves this issue, as regards inventions, even if its style is somewhat lawyerish.

Chapter 6 (by Nari Lee ) discusses the impact of cloud computing and the global internet economy to software patenting. The discussion focuses on aspects of fragmented infringement in US, Europe and Japan: the infringing activity may be fragmented by technology or by territory or both. The other side of the coin, ubiquitous infringement, is just mentioned. By ubiquitous infringement refers to an activity that is carried out in one geographical location, but may infringe in multiple jurisdictions simultaneously due to its accessibility via the internet. This chapter is a delight to read: e.g. the analysis on how the fragmentation should be taken into account in drafting of patent claims in this area of technology is extremely useful.

Chapter 7 (by Perttu Virtanen) provides a useful update on recent developments on the different sides of the North Atlantic. Chapter 8 (by Jukka Kemppinen) was difficult to understand and thus its connection to the whole remained unclear. The book would have benefited of further work by a publishing editor, although it is only a minor inconvenience to the reader.

In response to the critical voices around the suitability of software patents for promoting software innovation, the authors state that improving multidisciplinary understanding on law and technology allows for better focus in future discussion and therefore better resource allocation. The presentation of the InnoGuard tool and the analysis of algorithm similarities is an important read for those struggling to effectively use resources in patent infringement analysis. Those planning to patent cloud computing related technologies (or defend against such patents) should absolutely read Nari Lee’s article. The rest of the book is useful, but not ground-breaking.