Midwinter begins, and everything is renewed. With the care and support of many experts in the field of artificial intelligence intellectual property, IPRs, and lawyers, the 3rd Intellectual Property Frontier Artificial Intelligence Forum (IFAF 2023) was successfully concluded on December 8, 2023 at Four Points by Sheraton Beijing Haidian Yongtai Hotel.
The event was co-hosted by YIP Events & IP Frontier New Media & Compliance Plus, with the theme of "Intellectual Property Protection and Innovation Value in the Intelligent Era" during the two-day conference and half-day pre-conference seminar.
At the forum on December 7, Liu Wei, senior partner of Beijing Jincheng Tongda & Neal Law Firm, delivered a keynote speech on "Patent and Technical Secret Protection Practice in the Field of Artificial Intelligence - Also Talking about Electronic Data". IP Frontier has compiled the content of Mr. Liu's on-site keynote speech for reference and Xi by members of the intellectual property industry.
table of contents
1 Means of protection in the field of artificial intelligence
2 Patent protection in the field of artificial intelligence
3 Case analysis of patent infringement litigation in the field of artificial intelligence
4 Case study of technical secret protection in the field of artificial intelligence
5 Case studies of computer software protection
6 Conclusion
01 Protection measures in the field of artificial intelligence
There are three main means of protection in the field of artificial intelligence:1. Patent Protection, 2. Protection of technical secrets, 3. Copyright protection of computer software. For patent protection, since Article 25 of the Patent Law stipulates that patents are not granted for scientific discoveries, rules and methods of intellectual activities, diagnosis and treatment of diseases, etc., patent protection in the field of artificial intelligence needs to protect a certain system, equipment, method, device, medium, etc., and cannot protect simple algorithms or codes, so patents are suitable for protecting the application of algorithms.
The underlying algorithm can be protected as a technical secret. In September 2020, the Supreme People's Court promulgated and implemented the Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Infringement of Trade Secrets, Article 1 of which clarifies that "algorithm" is a type of technical information in trade secrets. Through the protection of technical secrets, algorithms and source code can be directly protected.
Computer applications can also be protected by computer software copyright. The Regulations on the Protection of Computer Software stipulate that: (1) A computer program refers to a sequence of coded instructions that can be executed by a computer or other device with information processing capabilities in order to obtain a certain result, or a sequence of symbolized instructions or symbolic statements that can be automatically converted into a coded sequence of instructions. The source program and the target program of the same computer program are the same work. (2) "Documents" refers to the textual materials and diagrams used to describe the content, composition, design, functional specifications, development, test results and usage methods of the program, such as program design specifications, flow charts, user manuals, etc. ”
02Patent protection in the field of artificial intelligence
There are three main difficulties in patent protection in the field of artificial intelligence, namely, the issue of subject matter eligibility, the issue of creative step judgment and the issue of adequacy of disclosure, which have been elaborated in detail in the previous keynote speeches and will not be repeated.
03Case analysis of patent infringement litigation in the field of artificial intelligence
3.1 Shanghai Zhiyun Medical Technology Co., Ltd. v. Shanghai Taiyi Health Technology Co., Ltd. Invention patent infringement dispute [(2021) Hu 73 Zhi Min Chu No. 222]
The patent involved in the patent is a traditional Chinese medicine face-to-face diagnosis analysis and diagnosis system, which from the perspective of pattern recognition, through the segmentation of the patient's facial image, to obtain the qualitative and quantitative analysis results of facial color, gloss and lips, combined with the doctor's professional diagnosis, give the professional diagnosis results and print them into a report, the system can achieve the role of assisting the clinical diagnosis of traditional Chinese medicine.
Claim 1 clearly defines "a traditional Chinese medicine face-to-face diagnosis analysis and diagnosis system, which is connected with a traditional Chinese medicine observation and detection device". At the same time, the patent specification discloses a "TCM inspection device" that converts a point light source into a surface light source, creating a soft, stable and uniform shooting environment that is similar to natural light inside the inspection device. This stable and uniform shooting environment can solve the problem that open direct shooting is easily disturbed by external light, which distorts the color of the captured image.
Claim 1 further limits seven modules: information acquisition module, image segmentation module, face color analysis module, facial gloss analysis module, lip analysis module, data management and comprehensive analysis module and diagnostic report module. However, the patent specification in question does not involve the algorithm to realize the function of the module, and only provides a user display interface.
The court held that the alleged infringing product did not possess the above two technical features. Specifically, the alleged infringing product was implemented by the inspected party in an open environment, so it did not have the "traditional Chinese medicine inspection and detection device" in the claim. There is no similar user interface corresponding to the patent in question in the use of the alleged infringing product, and the patentee has not provided other evidence of the existence of corresponding modules.
Therefore, the court held that the alleged infringing products did not fall within the scope of protection of the patent in question. It can be seen from this case that when applying for a patent for the specific application of an algorithm, the addition of non-essential technical features to the claims will result in an excessively narrow scope of protection, and it will be impossible to prove that all the recorded devices have been used in the alleged infringement. Among the patents involved, the device for optimizing the light source and multiple modules with overlapping functions are non-essential technical features, and the scope of protection is too small to successfully protect rights.
3.2 Procter & Gamble v. Beijing Qihoo Technology Co., Ltd. et al., a dispute over infringement of invention patent rights [(2017) Jing 73 Min Chu No. 1897]
The patent in question is also a skin imaging and analysis system and method. Claim 1 is: a method for locating one or more visible skin defects of a portion of a person, comprising the following steps:
- obtain the first digital image of the said part of the person;
- electronically analyze the first digital image of the said part of the person in order to locate the area containing the skin defect;
- Determine the numerical severity associated with the area containing the skin defect;
- produces a comparison between the severity of the value and the predetermined value relevant to the general public,
- The predetermined values related to the population are one of the following groups, which include: (a) age-specific values, (b) geography-specific values, and (c) race-specific values.
The accused software is a product that detects and intelligently analyzes skin problems, and its features are compared with the patented technology as follows:
Through technical comparison, the court finally found that the infringement was established. In this case, the scope of claims of the patent in question is broader than that of the previous case, and we also recommend that the patent in question should be as concise as possible and less restrictive.
3.3 Patent ownership and trade secret disputes between Company Y and Company X
Company Y is a technology-driven data service company that provides services for a number of tertiary hospitals, with a large number of disease-specific databases and medical model algorithms. Company Y's former employee A was mainly engaged in the field of medical data services during his employment. A resigned in June 2020, and within a week of leaving the company, he established Company X as a shareholder and served as its legal person, and in July 2020, Company X applied for a patent related to medical data, the inventor is A, and the patent directly discloses the trade secrets of Company Y. After considering the actual situation, Ms. Liu Wei first filed a lawsuit on the grounds of patent ownership dispute, and at the same time actively communicated with the other party, and the other party was also aware of the risk of trade secret infringement, and finally the two parties reached a settlement before the trial, and Ms. Liu Wei successfully assisted the client in reaching all the demands in the settlement agreement.
04Case study of technical secret protection in the field of artificial intelligence
Lawyer Li Decheng of the team accepted the client's entrustment to sue an information technology limited company in Zhejiang for illegally disclosing software source code and infringing technical secrets, which lasted three years until the final judgment came into effect, and ordered the defendant company to jointly and severally compensate 5 million yuan for infringement.
4.1 Pay attention to the fixation of electronic data and take measures to stop infringement
After receiving the complaint and verifying it, the customer learned that the source code involved in the case was publicly disclosed by a user on a global open source community website. The client then launched a series of investigations and complaints, and the lawyer assisted the client in actively communicating with the platform, requesting the removal of the code involved in the case and requesting the real-name information of the infringing user.
However, it was not until three months later that the platform agreed to remove the relevant links of infringing users on the grounds of copyright infringement. In addition, because the platform is registered overseas, it needs to provide local judicial documents, so it refuses to provide the user's real-name registration information.
During this period, the lawyer solidified the registration information on the platform, the disclosed source code involved in the case, and other project content published by the user in the form of recorded videos or screenshots. Taking the CD-ROM file of the video recording as the object, the content of the project information published by the infringing user that can reflect the defendant's company information was screenshotted, the time and location of the recording frequency were indicated, and all the information was grouped to prove that the defendant was seriously suspected of illegally disclosing the source code involved in the case.
After comparison, the disclosure code package fully contained nearly 1,000 source code technical secret documents claimed by the customer, that is, all the technical secrets claimed by the plaintiff were publicly disclosed. Further, through other public repositories posted by the user, it was found that other repositories contained information such as links to the defendant's internal R&D management system.
The plaintiff has sufficient grounds to suspect that the defendant and its employees have illegally disclosed the plaintiff's technical secrets, and shall be jointly and severally liable for tort. Therefore, after completing the organization of evidence, the plaintiff filed a lawsuit for infringement of technical secrets with the defendant and its employees as co-defendants.
4.2 Pay attention to the correspondence between the technical secret point description document and the carrier
First of all, it is necessary to properly handle the problem of storing software source code versions in combination with the form and content of electronic data.
Secondly, it is necessary to write a technical secret point explanation document for the source code that has been saved and delivered by the plaintiff, and hand it over to the appraisal agency.
Finally, it is necessary to prove from different angles that the source code involved in the case was disclosed and implemented by the defendant's specially authorized employees, and a "Comparative Explanation" should be prepared, and the comparative explanation should be able to confirm that the substance is the same.
4.3 Determination of Losses and Application of Law
In this case, the lawyer argued for the application of punitive damages in the calculation of damages, because the platform website that disclosed the code in question was extremely influential. The source code involved in the case was publicly disclosed for more than 7 months, the plaintiff's sales fell sharply, the business line was almost closed, and the circumstances were extremely serious, and the plaintiff also hired a third-party evaluation agency, which showed that the commercial value of the code involved in the case exceeded 10 million yuan. However, the court did not accept the claim for punitive damages and finally awarded 5 million yuan.
05Case study of computer software protection
5.1 Determination of infringement and application of law
The criterion for judging computer software copyright infringement cases is mainly contact + substantial similarity, in which contact is generally proved through labor relations and cooperative relations. It is difficult to prove substantial similarity, and the court will generally consider the following factors: the number of substantially identical code files, variable names, function nesting relationships, program interfaces, redundant information, defects, programmer names, special notes, ID information identifying identity, program interfaces, user manuals, etc. In practice, if it is not possible to directly obtain the allegedly infringing computer software source program, it is also possible to directly compare the target programs with different target programs and the target programs of both parties in the decompilation. For cryptographic chips, if the target program cannot be read, a black box test can be performed to prove that the same input has the same output, has the same program defect, etc.
5.2 Beijing Longsoft Technology Co., Ltd. v. Lu Bentao et al., a dispute over infringement of trade secrets [(2017) Jing 73 Min Chu No. 1259]
Through the case (2017) Jing 73 Min Chu No. 1259, it can be seen that when the proportion of the same code is low, it may not constitute substantial sameness. In this case, the court's reasoning for determination was that: "When determining whether the allegedly infringing information and the right holder's trade secrets constitute substantial sameness, the technical information claimed by the right holder should be judged as a whole, and the substantive identity of the whole cannot be replaced by partial substantive sameness." According to the report of the appraisal agency in this case, the number of consecutive lines of code with the same logical meaning for different secret points ranged from 0.3% to 22.3% of the codes of the two companies, so even if there is a situation where the code part is identical, the proportion is small and does not constitute substantial sameness. ”
Although this judgment does not constitute "substantial sameness" after comprehensive consideration, it does not determine that it must be higher than a certain proportion to constitute substantial sameness, and it may need to be judged by combining other factors such as code logic.
5.3 Cases handled by our lawyers
Mr. Liu Wei has handled many cases of computer software protection, and briefly introduces the representative cases:
- A company's game software infringement case
A former employee of a gaming company publishes the same game at another company, with only the pictures replaced. Our lawyers assisted in downloading the target program and comparing the decompiled target program, and found that a large number of codes were consistent, and requested the court to preserve evidence. The court then went to the defendant company, and the defendant company submitted the source code after simply modifying the program, and the final comparison results showed that a large number of codes were consistent, and the court found that the copyright was infringed.
- Software infringement case of a company
With the assistance of our lawyer, we successfully requested the defendant to provide the source code, but the source code submitted by the defendant required a password to be viewed, and the defendant refused to provide the password. In the end, the court also found that the defendant had infringed.
06 Conclusion
In the era of rapid development of artificial intelligence, both enterprises that develop artificial intelligence and those that use artificial intelligence should pay attention to relevant technical protection and legal issues, and protect their legitimate rights and interests by legal means.
Author: Liu Wei
Edited by Eleven