Inequality in the protection of intellectual labour - A brief look at the patentability of computer implemented business schemes, methods and inventions.
In the last 20 years computers have revolutionised business, enabling entirely new business methods and schemes. F45 Fitness, a large multinational firm with a market cap in excess of 1.3 billion USD, owes its success to the implementation of ‘Functional 45-minute workouts,’ which are digitised and distributed to gyms, on demand, from a central database. However, F45 has just been stripped of two patents for their distribution system raising important questions as to how the law ought to reward and protect the innovativeness of entrepreneurs, given that the technological capacity for the a system existed for years before it was realised and implemented.
Patents offer the holder a time-limited monopoly on the licensing, manufacture, and use of an invention. They are a controversial area of law due to the economic effects of monopolies within markets, yet are considered necessary to incentivise invention, as without protection for time, money and labour invested, what incentive would there be to invent?
Legally, ‘pure’ business schemes are not patentable in Australia. There is a requirement for a physical aspect, a ‘concrete, tangible, physical or observable effect or phenomenon.’ The invention must also satisfy subject-matter, novelty, and utility requirements.
Courts are yet to distill widely applicable principles for the patentability of computer implemented inventions. The test for computer implemented inventions was reframed in Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd. The question now is: Is the invention computer implemented, and if so, can the invention be claimed broadly as an advance in computer technology? The law requires that a computerised invention, scheme, or method of doing business, even if it would not be obvious to a person skilled in the relevant art, must also be accompanied by some ‘advance in computer technology,’ excluding a great number of computerised innovations.
A capitalist approach would be to afford no protection and encourage competition, however, it seems nonsensical that one can claim the exorbitant protections offered by patents for technical inventions, but that at the same time, a business which innovates on non-technical grounds, is offered very little by the law. This is especially so with computer-based innovations where the technical ability for the method has existed for some time, yet realisation is the by-product of intellectual labour equivalent to that which would otherwise attract patent protection. Although I feel the grant of an outright monopoly would be overkill, the lack of recognition and the capacity for others to simply ‘copy and paste’ as it were, highlights a gap in IP law which will be hard to resolve considering the tension between our economic system and the recognition that the law should protect and reward those who expend time, labour, and intellectual effort in the innovation of new methods, schemes and devices.