Legal & Ethical
Analysis of the Grid infrastructure and its implications on intellectual property issues (Marcelo Corrales - LUH)
In the realm of a clinical trial scenario a Grid computing infrastructure has been identified as a key to support and facilitate the cooperation of scientists and resources through scalable computation and the management of data systems.
The ACGT platform consists of multiple interconnected IT resources networks allowing users to execute a variety of scientific applications requiring a trustworthy, steady and prevalent access to computational capabilities. This complex collection of servers and communication protocols poses legal intellectual property questions: should copyrights or patents protect the grid? What about software licenses in a Grid environment?
For a better legal analysis, it is important to know what the grid is. A Grid infrastructure is generally described with three different layers. The lowest layer is usually called “platform“, consisting of the hardware resources such as computers, networks and interface devices which are geographically distributed, presenting their data in a variety of formats. The second layer, also called the “middleware“, is defined as the software layer that lies between the operating system and the applications on each site of the system. The last layer provides the user with application services including workflow engines, data visualization tools, semantic web and web portals.
Intellectual property rights can be applicable to different aspects of the Grid infrastructure:
- First of all, the law of copyrights must protect the originality of the authors. Therefore, as soon as there is an expression of creativity in an original way, it implies an automatic protection. This is the case in the ACGT Grid infrastructure that must then be protected accordingly by a two-fold protection. On the one hand, the fact that different project partners are creating a new infrastructure tailored to ACGT’s needs, by selecting and arranging the Grid layers. On the other hand, copyright protection for the computer programs arises since their development. According to Art. 1 (3) of Directive 2009/24/EC, a computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. The object of copyright protection is the source code and the machine code in order to protect against mere copying, but not to protect against the exploitation of the (technical) idea as such.
- Second, as far as the patentability of Grid-based computer programs is concerned, Art. 52 (1) and 52 (2) lit c of the EPC may be applied when the deployment on Grid of the program produces an additional technical effect subject to industrial application. The solution of computer program-related problems does not give rise to patent protection, as Art. 52 (2) lit c of the EPC is applicable in those cases. Nevertheless, it is imaginable that when a computer program is developed and constitutes a new way of using a Grid infrastructure or makes Grids more efficient, it becomes a solution to a technical problem. It therefore becomes generally patentable.
Careful assessment is therefore to be made on whether a problem is technical or computer-program related as Grids are based on implementation of computer programs. Therefore, if within the project, a new and innovative way of distributing resources on Grid infrastructure is developed by using a computer program, this may be patentable according to Art. 52 (1) EPC.
- Last but not least, in terms of exploitation rights, the management of licenses should be centralized. Thus a central mechanisms validation authority, such as the Center for Data Protection (CDP) in ACGT, may act as a central institution empowered to manage the license agreements. This extends to the licenses that have to be considered (i.e. those of computer programs used) and to the licenses that were given out (i.e. those corresponding to project achievements).