Business Method Patents in Japan

- Criteria for Determining Patentability in Japan

There is a problem as to whether a business method can be granted as a software patent. Inventions concerned with business often relate to how to implement a business (or an idea). However, to determine whether that method is an invention, consideration must be given not only as to whether there is a distinguishing feature in the business method, and whether software itself was created, but also in relation to whether an information processing device was created.

For example, if a business method is claimed that utilizes economic methods, artificial decision making, or human mental activity as the invention in the claims, it cannot be protected under patent law because that business method does not use the natural law. Also, even if the claims describe the use of a computer or network, the method is not considered to be an invention if it only uses those tools to perform business, or is nothing more than a simple form of business method that uses computers, because it does not comprise the creation of the software itself.

By specifying the degree of use of the hardware resources in the claims, it can be determined whether or not the software in the claims is an invention. Generally, if the hardware resources (for example, the memory and registers) required to execute the software can be specified in detail in the claims, then the invention in the claims can be considered to correspond to an invention, which is the creation of the software itself. Conversely, if the hardware resources are only described as a formality, the invention in the claims is normally determined not to be a creation of the software itself.

A business-related invention can be considered to be an invention when it is considered to be the creation of an operation method for an information processing device, if the claims constitute a method for operating the information process device by using the hardware and software as one body, in order to realize the business idea.