Israeli law and combination inventions: Patentable software based avionic systems
Israel is considered today to be a leading force in avionics in the world as a manufacturer of electronic control systems for civilian and military aircraft. A central component of current avionic systems is a software program which communicates with and controls existing electronic, electro-optic or mechanical avionic systems, among them communication, navigation and autopilot, contact and electronic combat systems. Therefore, discussion on the subject of the patentability of computer programs is especially relevant to patent applications in the field of avionics.
As early as 1981, the U.S. Supreme Court ruled that a physical process controlled by a computer program is one that is patentable (Diamond vs. Diehr). In making this ruling, the Court determined that such patent requests must be examined as a sum total in the same manner that is applied to combination patents: it is possible to register a patent for an invention whose sole innovation is in the software program, provided that all the component parts that make up the system function jointly to achieve a singular end result that leads to an inventive step. Eventually even the exacting European Patent Office (the EPO) adopted the approach by which a patent for a computer program may be registered when it constitutes a “novel technological contribution to an existing concept”, in spite of an article explicitly stating that computer programs are not patentable.
An Israeli regional court case was heard in 1984 regarding an invention in the field of avionics, a system that monitors and controls fuel delivery to a helicopter engine during flight. The system receives and processes data, and outputs a command that results in a change in the engine’s fuel intake, in fact reducing the helicopter’s fuel consumption by about 10%.
The system was made up of physical components that periodically measure various real-time data, and a program-based control unit to which the data was transferred. The physical elements included sensors that make a large number of sample measurements, receiving information on velocity, flight altitude, engine speed, blade angle and fuel intake rate. The program executed calculations and coordinated the signals to the fuel valve based on the data, effecting changes in the rate of fuel intake to the engine during flight.
The hearing was made at the request of United Technologies Corporation (UTC), which appealed a decision made by the Israel patent registrar not to approve its application for a patent on its invention. It is important to mention that the application was already registered at the Israeli Patent Office in 1983, and that the patent was approved in the U.S., Europe, and Canada.
The appellant, UTC, conceded the registrar’s claim that the physical components of the system are not new ones, and that the main innovation was within the computer program. However, the appellant put forth that the invention constitutes a combination of components that brings forth a novel and singular result that could not result from the individual components, and that therefore the combination is worthy of patent protection. An interaction exists between the program and the physical components, so that without the physical components the program has no effect on fuel consumption, and vice versa. Only the combination of the two allows for significant economization of fuel.
The registrar made no statement claiming that the invention taken as a whole is not novel and effective. Furthermore, no contention was made by the registrar against the claim that the program effects physical changes in the helicopter. Consequently, the court accepted the appellant’s claim, that one may view the increase and decrease in fuel flow rate from the fuel tank to the engine as a “process” as defined in Section 3 of Israel’s Patent Law. The court ruled that tangible technological processes occur that change the position and opening time of the fuel valve inside the helicopter’s fuel intake system, these processes being patentable within the law.
The State of Israel thus complies with international standards regarding requests for patents for inventions whose primary innovation is in software systems, including those in the field of avionics.
Published : Israel Technologies on December 2010.
Yaron Hefets, Ph.D. Physics, Patent Attorney at Gold Patents & Financial Services ltd. Yaron specializes in Physics, Medical Devices, and Technologies, Computer Sciences, Electronics, Electro Optics and Cellular Communications.
Daphne Levy, B.Sc., MBA – Patent Attorney Intern (2011) at Gold Patents. Daphne specializes in Computer Science, Security & Privacy, Medical Technologies and Integrated Systems.