As a growing field in the world, mobile device technology represents an opportunity platform for patent filing, prosecution and enforcement. Manuel Lopez from Uhthoff, Gomez-Vega & Uhthoff S.C., shares the Mexican perspective.
Technology Background
From the beginning of time, humans have dreamed with future possibilities, tools for a better and simpler life and helpful inventions, also imagining how we will live and the kind of technology that will exist in our everyday life. As a result of this human behavior, today we have an endless series of electronic inventions and related technology which have changed our world.
Today, communications are so advanced, that we can instantly see and listen people from anywhere and at any time from all over the world by only using a mobile device. Nowadays it is common to share videoconference communications over several kinds of networks.
Mobile Devices in Modern Life
The impact of mobile devices in our daily life is almost infinite. Let us consider for example, the beginning of our working day with a ringtone from our smartphone as an alarm clock, or the amount of content and information that you can find, share and spread in seconds, via a mobile device, also including tons of entertainment data and multimedia apps.
Besides improving both social and professional life, these new technologies have become an irreplaceable development tool in all productive sectors of worldwide industries.
Due to the high data storage capacity and the immediacy with which the distances have been shortened between the generation of ideas and the corresponding audiovisual recording and its massive spread, these devices have become a key element in several human activities.
In this sense, mobile devices play an important role in the technological revolution with huge implications on human development, and the widespread use of these, has transformed mobile devices into the kings of the technological universe. As a consequence of such trend, United Nations reported in 2013 that: "In a world of 7 billion people, 6 billion people have a mobile device, but only 4.5 billion have a toilet or latrine".
International Legal Trends
In connection with this technology, some of the biggest companies in the world, like Samsung, Google and Apple have several ongoing projects in order to develop and establish mobile devices as a worldwide trend. In this tenor, large companies perceive Latin American market as a growth market with great opportunities in the next few years.
In Latin America, there is the possibility of attracting new users of mobile devices, while in Europe, USA and some countries of Asia, a saturation effect is common, wherein commercial movement is mostly related to updating smartphones. So, we are now in an attractive continent, with great technology competence and the tempting opportunity to protect related technology features.
Now, considering intellectual property and taking into account that in a few years almost 100% of humans will have at least one mobile device, smartphone patent wars between large companies has increased in the last few years.
Only as an example, lawsuits in the mobile device business have recently involved Apple Corp. which has sued, in the last years, other big companies, fighting for key aspects of mobile devices, such as data transfer technology, antenna features or GSM, WLAN and 3G connectivity.
Another clear example of the importance of protecting intellectual property rights, was the battle of Google against Microsoft and Nokia, involving mobile device patents, which resulted in an increase of prices for smartphones and several wireless devices. The complaint focuses on 2000 patents that Nokia and Microsoft sold to a company that specializes in collecting royalties on intellectual property matters.
As a consequence of the above mentioned facts, nowadays most of the purchase transactions between companies are driven by the patent portfolio of the potentially acquired company. As another example, Google in 2011 bought Motorola Mobility not because of their products, many of them outdated, but for their intellectual property rights: more than 20,000 patents.
In this field, there are attractive data. It seems normal for most developed countries, with big budgets for research and large companies, to have huge investments in this area and most of the granted patents, however, it is important to remember that in Latin America, a fast growing effect is occurring in all emerging markets of mobile devices. In 2013, World Intellectual Property Organization (WIPO), reported in the Latin America patent filing ranking, the first three places for Brazil, followed by Mexico and Chile.
Present Scenario in Mexico
Nowadays in Mexico, the protection of mobile device technology heavily depends on the description of elements, mainly hardware features, and their technical relationship directed to achieve inventive, novel, tangible and quantifiable technical effects from the Mexican Practice point of view. Unfortunately, Mexican Industrial Property Law (LPI) excludes computer programs, algorithms and applications per se as inventions, which sometimes represent the heart of mobile devices.
In this regard, it is worth noting that the Mexican Patent Office (IMPI) does not have a clear criterion for this kind of inventions, and there are many doubts about the best way to address the matter. The only information issued by the Mexican authorities on the topic is that it will be extremely important to recognize and distinguish a software patent from a computer implemented method invention. In this regard, it can be said that the Mexican resolutions on this topic in a near future will probably depend on the criteria adopted in Europe due to considerable similarities in the legal framework for these type of technologies.
The Mexican Patent Office has not developed any written guidelines that may lead examiners to carry out a special type of analysis of computer-related inventions, particularly those pertaining to software in mobile devices. However, a uniform criterion for the examination of this type of inventions has been generated through discussions with the examiners during the prosecution of applications for computer-related inventions in the last years.
Expectations in Mexican Patent Practice
At this moment, although there is not a clear or totally accepted way to obtain patent protection in the field of computer-related inventions and mobile devices in Mexico, protection is related to a properly drafted specification that may clearly show the examiner that the invention covered by the corresponding patent application is one that should be considered as containing statutory subject matter. That is, it is necessary to disclose an invention having novel and useful practical applications in the art, regardless of the fact that said novelty and usefulness fully rely on the software aspects of the mobile device, and also as including a detailed description of what the device achieves, not only in the data or information transference sense, but in its "marketplace" sense as well, by stating how the mobile device solves a practical problem.
Despite the above, through daily practice, the Mexican Patent Office (IMPI), directors and examiners, have lately opened up to analysis towards studying the technical elements and novel features of mobile devices, among other computer implemented inventions. Those technical characteristics are now studied and considered if they include a novel process of transforming matter or energy, in such a way that the achievement could be treated not only as the automation of a known process, but as an inventive way of obtaining a technical result, understanding as technical in this field, the series of inventive steps or related novel achievements with quantifiable characteristics or units (e.g. BPS, Amperes, Hertz, Watts, Volts, MB, etc.).
It can be said that, in connection with specific claim drafting in our country, the accepted and many times allowable subject matter almost share the same criteria from the European Patent Office (EPO), with very few exceptions, for example, signal claims are not accepted in Mexico.
Conclusions
In Mexico, legal protection and enforcement of mobile device technology through patents is a growing field, and Mexican Practice allows patenting many of the novel and inventive computer implemented features of mobile devices.
In the near future, technical characteristics involved in software of mobile devices will be probably regarded as patentable in Mexico, provided that it may be properly disclosed and properly claimed. Even software features that could be highly mathematical in nature will be probably regarded as potentially capable of receiving patent protection if the practical significance of the mathematical analysis of the respective process is explained in a manner that may distinguish the mobile device achievement from a mere computer program.
Finally, the intellectual property challenge in Mexico for this technology will depend in the next years on the drafting elements of every claim, which should clearly show that the invention implemented in the corresponding mobile device has its own novel and inventive technical characteristics, despite of the software, code or application needed to accomplish said technical achievement.
Originally published in "The Patent Lawyer Magazine" on its May/June 2014 edition by CTC Legal Media www.patentlawyermagazine.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
