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[Patentstudent]

Suppose I found a new way to sell items on the internet by using video chatting (let's assume that is not done yet). In Europe as far as I know there is no way I can get a patent on this new method of conducting business. Article 52 (c) of the European Patent Law says that schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers shall not be regarded as patentable inventions.

What other means can I use to prevent that my competitors can copy my features as soon as I launch my new website?

For example, does it make sense to use a variety of design patents for different screen layouts?

Thanks in advance for your advice/suggestions.

[JimIvey]

This is taking me back a few years, but here's an idea....

Back in law school, I struggled a bit with copyright as applied to software.  Whelan (famous case) suggested that, in software, coverage dipped a bit into idea rather than being limited to expression. 

I took an international comparative law class and focused on protections available for software.  Some countries (in Europe, I believe) had a notion of "industrial property".  If another company took your company's idea and duplicated it much more quickly than would have been possible with independent creation, they would owe your company some sort of compensation.  In my mind, it sort of fit a gap between expression-only protection of copyright which would, in theory, allow re-creation of software for a different platform as the expression would be totally different and broad protections afforded patents.

For what it's worth, I still don't understand how Europe does software and/or business methods.  The terms are meaningless as far as I can tell.  And, it seems as if your application gets unceremoniously dumped into the waste bin if it dares include data representing an amount of money.

You might also consider copyright for the screen views, the look and feel, and the user interface flow.  It's generally easy to make a program look different to avoid copyright issues on those things, but it's worth a shot.

Regards.

[Patentstudent]

Jim, thank you.

[DJoshEsq]

Not sure if your question was only for Europe, but in the US you could surely file method claims and possibly even system claims that are limited with functional language. 

In Europe, you should be able to draft claims that are outside the business method exception. 

I think the design patent idea or copyright protection idea is worthless (or at least nearly worthless).

[Patentstudent]

Thank you Joshua.

My question is only aimed at the European situation.
Could you give me an example of what kind of claims I should look for in my video chat based internet sales method in order to stay outside the business method exception?

[JimIvey]

I'm no European patent expect, but I'd wager that Europe will not afford you any patent protection for any "video chat based internet sales method" or system no matter how you claim it.  They simply don't value that sort of innovation.

I had a pending application in Europe for some sort of distributed inventory fulfillment of purchased digital assets and some European firm/practitioner wrote me out of the blue to ask how it was going.  He thought it was the closest thing to a pure business method patent pending in Europe at the time -- at least that he had seen.  I didn't think of it as a business method at all.  To me, it was a 3- or 4-way cross-authentication solution across an open, wide-area network.  That portfolio was bought by a huge computer company and I never saw the application again.  But I was really surprised that such a method was considered unworthy of patent protection in Europe, regardless of novelty and inventive step.

In the US, you have a much better shot.

Regards.

[Patentstudent]

Jim, thank you for your views.

The business entity will be based in Europe and all of the customers will most probably be from Europe, so, unfortunately applying for a patent in the US, will not help us.
Or am I overlooking something?

[relax]

I guess the point is not so much as to obtain protection where you operate, but to obtain protection where is most likely that infringement will happen 

[Patentstudent]

mmax, thanks for this comment.
We would like to be able to prevent our biggest competitor, which is a company also having it's principal office in our home country, from copying our method. So, in our case the most likely potential 'infringer' is also from Europe and the only 'infringement' we would worry about is 'infringement' by this competitor.

So far, it seems as if using copyright for screen views is the best we can do.
Is there anybody who sees a creative solution that could provide a better protection?     

[JimIvey]

One last thought.  If there's enough money at stake, seek the advice of an experience practitioner in Europe.  Sometimes, you can use carefully selected language to cast your innovation(s) in a more palatable way for the EPO.  In addition, with sufficient money at stake, it might worthwhile to file something and attempt to push the envelope of "industrial applicability" in the EPO.

Of course, there's always the business strategy of filing your best good faith application(s) and relying on the label of "patent pending" for as long as you're able to push in good faith for allowance.  That's entirely a business decision -- you have to decide whether the costs justify the benefits.

Regards.

[Patentstudent]

Jim, thanks again.

One last question for now: Would filing for a patent in one of the European countries give us priority for filing in the US within 12 months, even though the concept as such is not patentable in Europe?

[relax]

A possibility to "gain" time is to file a PCT application and later enter the regional phase in Europe and in US

[JimIvey]

One last question for now: Would filing for a patent in one of the European countries give us priority for filing in the US within 12 months, even though the concept as such is not patentable in Europe?

Yes.

Regards.

[iamddn]

The European Patent Office Examiner will assume all business related aspects of the invention are known and will treat these business aspects as prior art.  So what you typically need to do is present a technical problem and the solution to this problem provided by your invention.  For example, you could look at inefficiencies in receiving processing and storing data, and discuss how your invention could address these issues.  I would not even mention, in the application and claims, the business benefits (i.e., improved sales) or the EPO will be entirely non-responsive to your invention.  Also note that in EPO, the examination focus is on the differences between your invention and what was known, so that you claims list: part 1: the known; and part 2: the improvement.  This is hard to do in software, where inventor are often trying to claim combinations of known items.

Please also note that patenting requirements for software vary between the countries in the EPO

[Patentstudent]

Thank you both.
I will try to focus on the technical aspects and see if I can come up with something that may stick.