If you ask a patent law expert what you should do if certain novel subject matters fall under patent law exclusions that do not allow you to obtain patent protection, the first reaction from the expert would be to keep it a trade secret like a formula of Coca-Cola or Google algorithms.
Most of the secrecy managers in any company routinely check how intellectual property like software, engineering designs, and marketing plans are available in digital database or document form; they say you can have protected them as an intellectual property right. But when they are asked how to protect an algorithm that is not a document or database?
The answer of the legal expert varies from country to country as the national laws relating to patenting algorithms are not the same in all jurisdictions. For example, Section 3(k) bars patenting algorithms in India, which reads “mathematical methods, business methods, computer programs per se, and algorithms” under the nonpatentable inventions category under Section 3. The CRI guidelines 2017 also clarify what should and should not be allowed with respect to mathematical methods, business methods, computer programs per se, or algorithms.
Position in India After Telefonaktiebolaget L.M. Ericsson case
In an appeal against refusing a patent for “A Chaos Theoretical Exponent Value Calculation system” [3624/DELNP/2005] where the Deputy Controller held that the functions of the so-called system are based on a mathematical method for solving mathematical equations and declined to accept the technical effect theory followed under European Patent law, the Controller ruled that Indian patent law does not allow a patent for mathematical methods which have a technical effect. Therefore, the invention was rejected as not patentable under S.3(k) of the Patents Act 1970. Affirming the order of the Controller, Intellectual Property Appellate Board in Telefonaktiebolaget L.M. Ericsson vs Controller of Patents (2014) 08 IPAB CK 0006 held that
“the Controller here was of the opinion that the invention, which is the technical advance, was itself nothing more than “a mathematical method for solving mathematical claims which are further based on various algorithms.” So, the identifiable contribution was itself the excluded subject matter according to the impugned order. So, the Controller held that the Indian Patent law does not allow a patent for a mathematical method just because it provides a technical advance. His reasoning that merely because a mathematical method is a technical advance cannot cross the 3(k) bar is right. We see no reason to interfere with the impugned order. The appeal is dismissed.” [Emphasis Added]
Similarly, the Deutsche Telekom Ag application (1960/DEL/1997) for “Procedure and device used to load input data during authentication into an algorithm” and Daewoo Electronics Co application (1602/CAL/1997) for the “Method and apparatus for contour motion estimating a binary image by using a weighted block match algorithm” were refused by the patent office. Bharatplanet.Com.Ltd application (291/MAS/2000) for “A method, system and algorithm for dynamic transliteration from the English language to any other language” also met a similar fate. No appeal was filed in these cases.
These decisions of the patent office left the seekers of patents on algorithms high and dry. Consequently, in the early years of the implementation of Section 3(k), some of the applicants preferred to either withdraw applications relating to algorithms or allow them to be abandoned under Section 21(1). For example, Thomson Licensing S.A withdrew their application (2942/DELNP/2004) for “A Memory Management Algorithm for Trellis Decoders“. Porayath Rajiv also opted out, and his application (1140/MUM/2000) for “Acoustic feedback elimination using adaptive notch filter algorithm” was treated as abandoned under Section 21(1).
Similarly, Qualcomm’s two applications (IN/PCT/2002/381/CHE and IN/PCT/2002/382/CHE) for “Modified finger assignment algorithm for high data rate calls” were deemed to abandoned under Section 21(1). Koninklijke Philips Electronics N.V application (IN/PCT/2002/626/CHE) for “Method of running an algorithm and a scalable programmable processing device also met the same fate, and so did the fate of Indian Institute of Technology application (690/DEL/2004) for “Architecture of a rearrangeable nonblocking all-optical cross-connect & the associated algorithm thereof”.
Seeing the fate of algorithm-related applications at the patent office and the reasons for the exception of algorithms under Section 3(k), patent law experts rightly insisted that companies cannot patent an algorithm as such. This belief was affirmed on the premise that traditionally algorithms are simply telling a computer what to do. Section 3(k) specifically bars patents on algorithms. This means no patent protection is available for algorithms as such.
Patenting Novel Algorithms
Earlier case law, even in the US, categorically suggested algorithms were considered as an abstract idea and not eligible for patents. This position changed when the patent for the application of algorithms in the chemical industry was considered patentable. Later, a patent for the revolutionary “PageRank algorithm” for Google’s online search was granted as it was for a specific method that produced a new and useful result. The position of patenting algorithms in the US now is guided by the Supreme Court case, Alice Corp. vs. CLS Bank International, which ruled that abstract ideas implemented using a computer were not eligible for a patent unless the patent adds something extra that embodies an innovative concept. This means if an algorithm is used in a specific and novel way that results in a technical effect, it may cross the patentability hurdle.
Novel Proprietary Algorithms Patentable: Examples
Proprietary algorithms offer new or significantly improved techniques for solving problems or enhancing the company’s existing processes. Most talked about and popular patented algorithms are listed below:
| Sl. No. | Algorithms | Field | IP Status/Applicant |
| 1 | Google’s PageRank Algorithm | Revolutionised the way web pages are ranked by importance and relevance. | “US6285999B1 – Method for node ranking in a linked database owned by Larry Page and PageRank Patent was assigned to Stanford University. Google bought the exclusive usage rights for PageRank from Stanford University for 1.8 million shares of Google stock. Stanford University sold all its shares in 2005 for $336M. The PageRank patent expired on January 9, 2019. The improved version of Rank Page was patented and is still valid. It was titled “US9165040B1 – Producing a ranking for pages using distances in a web-linked graph”. It was developed by Nissan Hajaj (a Google employee), and the application was filed in 2006. The rights of this patent on Updated PageRank are valid till July 2027. Trademark rights of the word “PageRank” are with Google. |
| 2 | Deep Learning Algorithms | Such as Convolutional Neural Networks (CNNs), which have significantly advanced the field of computer vision. Analog Devices Inc | US20170169327 A neural network using sampled analogue technology is disclosed. Convolution Neural Networks (CNNs) are algorithms and circuits used for feature detection. In some implementations, detection or analysis of features can be for image data, audio data, or any other complex data that requires a sophisticated analysis to detect some feature of it. |
| 3 | Cryptographic Algorithms: RSA | Fundamental for secure online communication. RSA Algorithm: One of the most well-known public-key cryptographic algorithms | 1. U.S. Pat. No. 4,405,829 For RSA 2. Digital signature algorithm US US5231668 US Department of Commerce. |
| 4 | Recommendation Systems | Algorithms used by Netflix and Amazon to suggest products or movies based on user preferences and behaviour. | US7908183 Amazon Technologies Inc |
| 5 | Quantum Shor’s Algorithms: | For factoring integers, which could potentially disrupt current encryption methods with the advent of quantum computing.
| KR20210062380 The quantum circuit design method of the Shor algorithm uses modular exponentiation. Korean applicant
|
| 6 | Genetic Algorithms | Used for solving optimization and search problems by mimicking the process of natural selection. | US5255345
Shaefer, Craig G. Massachusetts |
| 7 | Machine Learning Algorithms | Systems and Machine Learning Algorithms to Facilitate Assembly of AIDS Vaccine Cocktails | US 8,478,535, Nebojsa Jojic of Redmond, WA,
Machine learning techniques are used “to generate vaccine cocktails for species of pathogens that evolve quickly under the immune pressure of the host. |
Indian Patents on algorithms related inventions
If we see the records of granted Indian patents, we will find that Twentynine patents have been granted for inventions relating to algorithms so far, and this list is growing. The list of granted patents is given below:
| Sl. No. | Patent No/Applicant | Title | Appln. Date |
| 1. | 432922 IIT | System and method for automatic parallel code generation for graph algorithms for multiple target architectures | 14/11/2022 |
| 2. | 477625 Ethicon | Feedback algorithms for manual bailout systems for surgical instruments | 17/02/2021 |
| 3. | 477623 Ethion | Feedback algorithms for manual bailout systems for surgical instruments | 17/02/2021 |
| 4. | 508096 Dept of Electronic KIET | Myocardial infarction detection and local identification from integrated ECG and MRI images using deep learning algorithms | 27/01/2021 |
| 5. | 532266 Verily Life | efficient gesture-based contact lens algorithms for human-to-contact lens communication | 15/04/2020 |
| 6. | 491362 DR Sathish Kumar MS Poommgal | A hardware implementation of secret key generation using multiple chaotic maps with secure hash algorithms for 5g & beyond applications | 30/08/2019 |
| 7. | 429941 Ramot TEL Aviv University | Novel biosignal acquisition method and algorithms for wearable devices | 29/01/2019 |
| 8. | 439061 BAE | Model-based protection algorithms | 20/11/2018 |
| 9. | 467344 NP Costentino and others | Technique to generate symmetric encryption algorithms | 08/06/2018 |
| 10. | 480204 Qualcomm | Clean-slate synchronisation signal design and cell search algorithms | 28/03/2018 |
| 11. | 513261 Ethicon | Surgical instrument with user-adaptable algorithms | 08/12/2017 |
| 12. | 461296 Ethicon | Feedback algorithms for manual bailout systems for surgical instruments | 17/09/2016 |
| 13. | 331843 Telefonaktiebolaget | High-performance lFA path algorithms | 11/04/2016 |
| 14. | 513761 Ceris Cisco | System and method for high-speed threat intelligence management using unsupervised machine learning and prioritization algorithms | 21/03/2016 |
| 15. | 495734 APPLE | Techniques for dynamically supporting different authentication algorithms | 25/01/2016 |
| 16. | 519612 Samsung | LTE REL-13 MTC device receiver algorithms for coverage enhancement | 30/09/2015 |
| 17. | 52863621 ARM Ltd | SIMD INSTRUCTIONS for supporting the generation of hash values in cryptographic algorithms | 19/03/2014 |
| 18. | 395422 Signalcip | System and method to convert lock-free algorithms to wait-free with hardware accelerators | 27/01/2014 |
| 19. | 444832 Amity University | Single Point Diamond Turning (SPDT) tool wear analysis using dynamic image processing algorithms | 02/09/2013 |
| 20. | 415503 Avaya Inc | System, method, and apparatus for determining the effectiveness of advanced call centre routing algorithms | 28/06/2013 |
| 21. | 421485 Tata Consultancy | Method and system for validating personalised account identifiers using biometric authentication and self-learning algorithms | 26/03/2013 |
| 22. | 405529 Qualcomm | A mobile device and method for exposing and managing a set of performance scaling algorithms | 14/03/2013 |
| 23. | 420543 Conduent business | Unsupervised parameter settings for object tracking algorithms | 31/08/2012 |
| 24. | 313328 Qualcomm | Scheduling algorithms for cooperative beamforming based on resource quality indication | 26/07/2011 |
| 25. | 377394 Huawei | A method for negotiating encryption algorithms and a network element thereof | 28/06/2011 |
| 26. | Telefonaktiebolaget Lm Ericsson | Reduced-complexity decoding algorithms for tail-biting convolutional codes | 22/04/2010 |
| 27. | 292332 Qualcomm Incorporated | Division of the scheduling algorithm into background and foreground algorithms | 13/04/2010 |
| 28. | 272225 GM Global Technology Operations, INC. | Calibration systems and methods for scheduled linear control algorithms in internal combustion engine control systems using genetic algorithms, penalty functions, weighting, and embedding | 28/08/2008 |
| 29. | 292332 Qualcomm Incorporated | Division of the scheduling algorithm into background and foreground algorithms | 13/04/2010 |
Conclusion
These granted patents in India and elsewhere clearly show that novel smart algorithms have also impacted various non-traditional, non-software fields. Innovative companies are racing to develop the next game-changing smart algorithm, machine learning tool, AI bot, computer vision technology, and a lot more. Smart algorithms are replacing traditional methods of R&D search enquiry ranging from marketing and sales, manufacturing, supply chain planning, medicinal chemistry, computational chemistry and so on. In the new digital world, we will find the use of a trained neural network to control the fabrication of chemicals like rubber, glass, a detergent or the controlled development of a biological or biomedical compound or drug, a vaccine, an artificial limb, an artificial organ, lab-grown meat etc.
In the rapidly evolving landscape of the use of digital technology and innovation, smart algorithms have emerged as powerful tools that drive artificial intelligence (AI) and machine learning applications. Some smart novel algorithms form the company’s valuable assets and can produce a competitive advantage. This means proprietary algorithms that are unique, not easily replicable, and capable of leveraging work processes to improve efficiency, drive innovation, and create new products or services with added competitive advantages in the market. The current legal landscape for patenting algorithms in India, like the USA, is complex and somewhat uncertain. This uncertainty primarily arises from the IPAB decision discussed above.
However, the patent examiners in India are looking west, particularly the ruling of Alice Corp. vs. CLS Bank International, and this has made it significantly more challenging to patent algorithms, as many may be viewed as mere abstract ideas. The list of granted patents above shows that the position of patenting algorithms in India is also rosy. An expert help can guide how an algorithm, when used in a specific, novel way to solve a technical problem, rather than the algorithm itself, can cross the bar placed under Section 3(k). Mind you, the innovative smart algorithm should be claimed as part of a system or process; it must clearly demonstrate its functionality, novelty, and non-obviousness to cross the non-patentability cliff.
Author: DPS Parmar
First Published by: Mondaq here