Human and Machine Rights: Limits of patent protection in Europe. A case law study

Patent protection under the European Patent Convention (EPC) is not available for all issues. The intuitive colloquial meaning of the terms "invention" and "technical" often differs from the legal interpretation given in case-law decisions. Many of the current patent disputes among the players in the smartphone and portable-device market are based on issues relating to graphical user interfaces (GUIs), which allow the user to interact and interface with these devices. Furthermore, practitioners often have concerns regarding the filing of trivial patent applications in this and related computer-implemented fields. "Human and Machine Rights" seeks to place these issues in the light of the case law of the European Patent Office. Assisted by a Socratic dialogue between two forgotten computers, Master and Flip-flop, part I of "Human and Machine Rights" leads the reader through a systematised reading of EPO case law, looking for the conceptual framework underlying the boundaries of the exclusions from patentability for technicality reasons (in particular those relating to GUIs and gestural systems). The intention is to explicitly set out a praxis-oriented criterion, thus allowing practitioners to anticipate whether or not patent protection is available for a specific subject-matter, and to determine where the risks of trivial patent applications lie. Leaving behind the traditional classification of decisions according to the areas of activity relating to the respective inventions, "Human and Machine Rights" develops a new conceptual categorisation of the issues under discussion in the decisions, departing from the problems solved or the aims achieved by the inventions. A Human-Machine-Interface (HMI) model is used for this purpose. This categorisation automatically leads to a differentiation between the main trend of the decisions and the possible dissonant voices, thus contributing to increased harmonisation in the way inventions are dealt with. An annex presents