IP Review Autumn 2017

13 To find out more contact Anna Chatzimichali achatzimichali@ withersrogers.com In many cases, building a robot or a system with social characteristics takes years of research, development and testing. As in many other industries, patents provide a way to protect this investment and help secure more funding for further research and development, which could in turn create the tipping point for these technologies, helping to bring them to market sooner, to the benefit of consumers. Academic research in the field of technology forecasting in care robots shows an increasing trend in patent filings since the 1990s. The trend has been recently confirmed by government data from South Korea that demonstrate a sharp rise in patent filings in the field of social robots, which might be attributable to recent advances in Artificial Intelligence. What is particularly interesting is that even though Europe is among the pioneers in robotics, the level of patent filings in social or care robotics does not reflect this. The majority of patent filings in the field of social or care robotic are from China, Japan and Korea. So why is Europe left behind in terms of patent filings, despite the fact that many European universities and research institutions are leaders in the field? Can the European patent system protect social characteristics in a robot or are there legal barriers that stand in the way? To answer this question we have to understand two important points about the European patent system. First, the peculiarities of dealing with software or computer program patents and second, the requirement for an invention to have “technical character” in order to be patentable. The issue with software patentability in Europe is not new. Computer programs “as such” are excluded from patentability according to the European Patent Convention. However, the EPO’s case law and practice has evolved to a stable position that a computer program can be patentable, provided that it brings about a further technical effect that goes beyond the normal interactions that occur between the computer program and the hardware on which it is run. The second consideration is that, in order to be patentable, an invention must have “technical character”. Generally, creations in engineering and technology are entitled to patent protection, provided that they meet the legal requirements of novelty and inventive step, since, as a rule, such creations will inherently have technical character. However, in the field of social robotics, patentability may not be so straightforward, because the effects of an innovation in terms of improving the robot’s social characteristics (or improving a human user’s perception of the robot’s social characteristics) may not be regarded as technical. For example, a nodding robot may be a creation that results in a better robot in terms of its interaction with the user, because the nodding function gives the impression of improved social interaction. Patenting the “social interaction” aspects of the robot may be challenging, however, due to the requirement for technical character in an invention. That said, patent protection should still be available for the nodding mechanism (provided that it meets the requirements of novelty and inventive step), as that mechanism will have the required technical character. Of course this does not necessarily apply in other jurisdictions. For example, Google was recently awarded a US patent for adapting a robot’s personality according to the user’s mood. The patent raised an interesting discussion in sections of the robotics community about the ethics of protecting something as broad as a robot personality, which seems to be permissible under US practice. The broad concept of a robot that can get social cues from the environment and behave accordingly to increase user satisfaction might not be considered technical enough to be patentable under European practice. The concept of personality per se would likely be considered as lacking technical character. In order for a patent to be granted, specific technical processes and structures that give rise to personality characteristics would need to be disclosed. Even though the concept of a social feature may lack technical character, there might still be a way to achieve some protection in Europe for such systems. For example, a robot that can detect nuances in the user’s tone of voice via a novel speech recognition interface can be considered technical and could lead to a patentable invention, as long as the patent is drafted with the technical effect in mind. As the field of social robotics matures and innovators seek to protect their developments via European patents, we expect the question of what constitutes technical character in areas like robot personality to be explored in more detail. In the meantime, companies and research institutions that are already active in the field or plan to enter in the near future should recognise that they will need to provide a detailed technical disclosure of their inventions in order to demonstrate the technical character required under European patent practice. That is not to say that innovation in this area will not be rewarded by patents; a new and inventive system based on sophisticated interaction between a user and a robot is still patentable, if patent protection is sought for the actual technical processes and effects that give rise to the “softer” interaction aspects and not for the “softer” interaction aspects per se. As in many other industries, patents provide a way to protect investment and help secure more funding for further research and development.