case law - decisions by the epo board of appeal in the field of computer implemented inventions

Case Law - Decisions by the EPO Board of Appeal in the Field of Computer Implemented Inventions

Eva Hopper and Edoardo PastorePatent Examiners, Cluster ComputersEuropean Patent Office

Ankara, 1 - 2 June 2010

Conference on Patentability of CII

The presentation and in particular the treatment of the examples reflects the personal opinion of the authors and does in no means prejudice any Examination Division or Opposition Division working on related applications.

Disclaimer:

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Agenda

1. Introduction: Case Law and Board of Appeal

2. Business and Administration

3. Gaming

4. Database Management

5. Digital Rights Management

6. Modelling & Simulation

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1. Introduction: Case Law & Board of Appeal

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EPO: Examination - Opposition - Appeal

validation in EPO member states

1. Instance 2. InstanceBoard of Appeal

EXAMINATION

grant of a European

patent

maintenance revocation

refusal

APPEAL

OPPOSITION

Case Law

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Guidelines

What is an Invention?

Case Law of the Boards of Appeal

There is no positive definition of the term "invention" in the EPC.

Interpretation

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Guidelines for Examination in the EPO

EPC - The European Patent Convention

2. Business & Administration

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T641/00: two identities/ COMVIK (26.09.2002)

T172/03: order management/ RICOH (27.11.2003)

T258/03: auction method/ HITACHI (21.04.2004)

Prior art: Standard GSM systemThe same GSM subscription can be used:

– for both service and private calls– or by different people

Problem (according to appellant): "distribution of costs for service and private calls or among different people may cause problems or involve extra work".

The COMVIK approach (T641/00 26.09.2002)

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Solution: two identities

Difference over state of the art (standard GSM system):(i) the SIM is allocated at least two identities,

(ii) said at least two identities being selectively usable, and

(iii) the selective activation being used for distributing the costs for serviceand private calls or among different users.

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The COMVIK approach - T641/00

Original problem: Distributing costs is not disclosed as a technical function of the system and the inconveniences to be eliminated are not located in any technical aspect of the GSM system.

Reformulation of the technical problem: How to implement the GSM system in order to allow the user-selectable discrimination between calls for different purposes or by different users.

Skilled person: An expert (programmer) in GSM systems that receives the concept of the cost distribution as part of the instructions for implementing the services to be provided to the customers.

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The COMVIK approach - T641/00

T641/00 - Solution in three steps ...

1. The skilled person knows that discriminating requires the allocation of different IMSI numbers, i.e. the implementation of a corresponding numbers of GSM applications on the SIM card [feature (i)].

2. Faced with this requirement, she finds a solution in the GSM standard (D8), which discloses the use of a multi-application smart card where commands are provided to select the desired application [feature (ii)].

3. The distribution of costs [feature (iii)] derives from the prior art in straightforward way, as costs are charged in the same way.

... but none of them is an inventive one

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Lessons learned from COMVIK (T641/00)

An invention consisting of a mixture of technical and non-technical features is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character, whereas features making no such contribution cannot support the presence of inventive step.

An aim to be achieved in a non-technical field may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met.

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The RICOH approach (T172/03 27.11.2003)

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• Topic: the ordering of expendable office supplies (copy paper, toner cartridge) by multiple departments within an organisation is to be centralised

• Problem (according to appellant): improved office system suitable to select supplies.

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• Solution: order processing by a central unit

• Effects (according to appellant):- choice of supplier acc. to best price priority and supplier priority - automatic processing of orders - minimal load of data processing

The RICOH approach (T172/03)

• Closest prior art: distributed information system comprising multiple general purpose computers at different locations and connected by a communication network= common general knowledge in 1995 (priority year)

• Difference:functional features and data structures for implementing the essentially business-related aspects and features of the order management method

• Objective technical problem:

providing an implementation of the business related featuresof the order management method

• Skilled person: an expert in a technical fieldAn expert in data processing who receives the concept of order management as part of the "requirements specification".

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The RICOH approach (T172/03)

Lessons learned from RICOH

STATE OF THE ART = State of the art in a technical field– The term "state of the art" in Article 54 EPC should, in compliance with the

French and German text, be understood as "state of technology", which in the context of the EPC does not include the state of the art in commerce and business methods.

– The term "everything" in Article 54(2) EPC is to be understood as concerning such kind of information which is relevant to some field of technology.

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anything which is not related to any technological field

state of the art≠

System, unit or meansdo per se not have any technical connotation.They may simply define business unit or methods, but they may nevertheless, at the same time, refer to corresponding technical components of the system.

Lessons learned from RICOH

CLOSEST PRIOR ART:can be common general knowledge.

SKILLED PERSON is an expert in a field of technology. He receives the details of the business method in the form of a requirements specification about the business method.

AUTOMATION:Where the claim differs from the closest prior art only in a mere automation of constraints imposed by the purely non-technical aspects, such automation using conventional hardware and programming methods is considered to be obvious to a skilled person.

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The HITACHI approach (T258/03 21.04.2004)

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• Topic: automation of an auction method

• Prior art (according to appellant): - auction method where bidders participate online and in real time in front of terminals; - "Dutch auction": = gradually lowering the price

• Problem (according to appellant): - to provide an automatic auction method which makes it unnecessary for the bidders to be strained before terminals at the time of the execution of an auction

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SOLUTION: automatic auction method

• CLIENT TERMINAL:a user provides two prices when submitting a bid, specifying his personal purchasing rules,- a "desired price" and - a "maximum allowed price in competition";

after this initial stage, the auction is automatic=> hence the user's presence before the terminal is not required;

ELECTRONIC MARKETPLACE SERVER:- gradually lowering the price- gradually raising the price at a competitive state

The HITACHI approach

CLOSEST PRIOR ART: • Document D6 - Dutch auction:

- The auction price, as monitored by an auction clock, sinks with time. - A bidder may stop the clock remotely using a pushbutton on his desk. The first bidder to stop the clock is successful. - Since the real- time behaviour is of great importance at Dutch auctions, time information is transmitted with the messages to determine the order of stop commands.

• Document D2 (similar to D6): The transmission delay problem is solved by a software phase-lock loop which achieves synchronisation of the auction clock at the bidders' terminals.

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The HITACHI approach (T258/03)

• Overall aim: - to identify the successful bidder for a product offered for sale at an auction.- This is not regarded as having technical character.

• Closest prior art: data processing system: technical means for data transmission and storage are commonplace and for instance known from D6

• Difference:business aspects of the auction method

• Effects (according to appellant):Delays in propagation of information between the bidders and the server are overcome. If the auction is performed online, as proposed in the prior art (D6 or D2), these delays will influence the outcome of the auction.

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• Solution (according to appellant):Adaptation of the known auction method such that it can be performed automatically. In this way, any data transmission delays become irrelevant.

• The Board ruled:This solution does not contribute to a technical character and cannot therefore be taken into account for assessing inventive step since it concerns the rules of the auction, i.e. it is not a technical solution to the delay problem described and it is not solved by technical means. The solution is entirely based on modifications to the auction method.

Method steps consisting of modifications to a business scheme and aimed at circumventing a technical problem rather than solving it by technical means cannot contribute to the technical character of the subject-matter claimed.

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Lessons learned from HITACHI

• An apparatus comprising clearly technical features such as a "server computer", "client computers" and a "network" is an invention within the meaning of Article 52(1) EPC even if it is merely used to execute a business method.

• A method involving technical means is an invention within the meaning of Article 52(1) EPC.

• Circumvention of a Technical Problem Circumventing a technical problem rather than solving it by

technical means cannot contribute to the technical character of the subject-matter claimed.

Adapting the business scheme is not considered as a technical solution as it does not require technical means.

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3. Gaming

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Recent decisions: T859/07: multi-player bet auxiliary game (27.11.2007) T1023/06: computer implemented game process (07.12.2006) T928/03: video game / Konami (02.06.2006)

Multi-player bet auxiliary game (T 0859/07)

The invention: System for playing an auxiliary game, wherein players have an interface (10) which allows them to place bets in relation to a main casino game.

According to the applicant, the invention provides a single interface, to which all bet data is communicated.

→ simpler architecture in relation to the state of the art, in which separateinterfaces where needed for player and dealer.

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The mere fact that excluded subject-matter is technically implemented cannot per se be the basis for inventive step.

Technical features include:

- receivers for receiving the bet data,

- a display,

- means for identifying a winning bet,

- all in communication with a central controller.

The non-technical features consist:

– in the game itself, which involves playing side bets on

events associated with a casino game.

In relation to the state of the art, the board added that "computer implemented gaming systems were manifestly known at the priority date". A document (D1) was cited to illustrate such prior art.

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Problem posed to the skilled person (software engineer) is to "computer implement the auxiliary side betting game".

According to the Board it is necessary to ask how the per se excluded subject-matter is implemented,

In other words, does the particular manner of implementation provide a further advantage or effect which is

• over and above the advantages and effects inherent in the game rules?

• beyond the effects typically associated with automation?

The Board answered in the negative, as the implementation is phrased in mainly functional terms. Effects such as relieving the effort of the dealer or increased speed (of game play) result from the gaming scheme itself.

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Computer implemented game process (T1023/06)

The invention:

Electronic video poker machine in which two hands of cards are dealt to the player;

The player makes a wager for each row;

The player may hold some cards of the

visible row and discard the rest;

A duplicate of certain cards is displayed

into the other poker hand;

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According to the applicant:

Problem: method of operating a video poker machine allowing an increase of the volume of poker games played per unit time while keeping both the number of user input operations to a minimum and the machine processing low.

The duplication of cards is not a rule of a game, as it is automated and is practicable only

on a video poker machine, allows to reduce the number of inputs from the user, and to use a single random number generator to play multiple

hands, rather than more powerful random number generators.

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The Board decided that:

It is not the duplication which is considered a rule of a game, but rather the concept of "shared" or "common" cards, which as such is excluded from patentability.

Assessment of inventive step must be based on any further advantages or effects associated with the particular manner of implementation, over and above the game's inherent effects and advantages.

The effect of reducing the number of inputs from the user is inherent in sharing cards as a game rule;

→ Therefore, the duplication step does not involve an inventive step.

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T928/03 - Video game/ Konami (02.06.2006)

Claim (summarised): soccer game

A guide displaying method for use in a video game... identifying the player that keeps the ball with a guide mark ....

characterised in that :a) shape and place of the guide mark (G1, G2) of the player (P1),b) a pass guide mark (G3) is displayed indicating another player (team mate P2), c) pass guide mark (G3) is displayed on the end of the display even when the other player (P2) and pass mark (G3) come out of the display area of the monitor screen so as to indicate the direction in which the game medium (ball B) has to be passed by the player (P1).

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A63F13/00BG06F19/00B

player with football

guide mark

T928/03 - KONAMI

Even when the player character P2 has come out of the area of display so that the guide G3 has become invisible, a portion of the guide G3 is displayed on the end of the display area so as to properly indicate the direction in which the ball is to be passed by the player character P1.

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place and shape do not contribute to technical character (design and game rule driven), but...

enlarged size avoids the mark being concealed increases visibility this is a technical purpose

technical problem: enlarging contributes to the technical function of the display: however, not inventive.

Prior art player Konami player

(mark in different place, different shape)

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Difference a) shape and place of the guide mark (G1, G2) of the player (P1):

Difference b) a pass guide mark (G3) indicating another player (team mate, P2),

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The pass guide mark draws the attention of the player to a second point of interest (teammate) on the screen. This is a technical contribution to be considered in the inventive step discussion.

The fact that there are various points of interest is due to the game rules. The technical contribution lies in the highlighting of the second point of interest.

However, highlighting is obvious as soon as the second point of interest arises.

not inventive.

guide mark

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Difference c) pass guide mark (G3) is displayed on the end of the display even when the other player (P2) and pass mark (G3) come out of the display area of the monitor screen so as to indicate the direction in which the game medium (ball B) has to be passed by the player (P1).

Prior art:Conventional video game GUIs normally do one of the following:- superimpose a down-scaled map of the zone of interest on the enlarged portion of the image, - zoom out (loosing detail),- shift the viewing perspective (loosing focus).

The technical problem underlying feature c relates to conflicting technical requirements:(1) zoom in: a portion of an image is desired to be displayed as an enlarged portion of an image(2) overview of complete zone of interest: the display area may then be too small to show the complete zone

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The Board ruled:

• The fact that the team mates' locations should be known by the user may be regarded as a direct consequence of the game rules, ...

• ... the technical realisation of how such locations are made known is not relatedto the game rules.

Effect:The solution offered by feature [c] expands the display functionality with the help of a simple guide mark on the end of the display area which • occupies minimum peripheral display surface and • still enables the user to maintain orientation when viewing an enlarged portion of an image.

not obvious from the prior art (conventional GUIs, common knowledge and further documents).

inventive

Difference c)

4. Database Management

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T 701/06 Grouping Images taken according to where they were taken / CASIO COMPUTER (06.06.2008)

T 787/06 A server with automatic document assembly / SONY (18.11.2008)

T 0701/06 Grouping Images taken according to where they were taken / CASIO COMPUTER

Where I took this photo ?

T 0701/06 Grouping Images taken according to where they were taken / CASIO COMPUTERClaim

A picked-up managing device comprising:

picked-up image storing means for storing picked-up image data and image picked-up position data being associated with the picked-up image data;

name storing means for storing name data and corresponding position data and area data on a map for group name candidates which are selected from names corresponding to different positions or areas on a map;

grouping means for grouping the picked-up image data stored in said picked-up image storing means into a group, wherein a group is made by either an arbitrary user selection among a plurality of picked-up image data based on relationship;

means for identifying position data or area data corresponding to the group by:a) selecting an image data which has the oldest data-and-time information from

the image data included in the group, and a coordinate comparison for finding a shortest one of distances between the image position data corresponding to the selected image data and all of the position data stored in the name storing means, or alternatively,

b) performing a coordinate comparison for determining whether or not image pick-up position data of all of the image data included in the group are included in areas corresponding to the area data stored in the name storing means;

means for acquiring from the name storing means a name data corresponding to the position data or the area data identified by the identifying means, and

control means for storing the acquired name data as a group name in association with picked-up image data included in the group

T 0701/06 Grouping Images taken according to where they were taken / CASIO COMPUTERClaim (condensed)

A picked-up managing device comprising:

picked-up image storing means for storing image data and image position data;

name storing means for storing name data and corresponding position data and area data on a map ...

grouping means for grouping the picked-up image...

means for identifying position data or area data corresponding to the group by:

a) selecting an image data which has the oldest data-and-time information from the image data included in the group, and a coordinate comparison for finding a shortest one of distances between the image position data corresponding to the selected image data and all of the position data stored in the name storing means, or alternatively,


control means...

Appellant's argument

1.it is difficult to associate the images in a group some time later from only the date they were taken

2.the invention assigns a meaningful name, such as the are name

3.none of the prior art document addresses the problem of how grouping and name a selection of images.

T 0701/06 Grouping Images taken according to where they were taken / CASIO COMPUTER

• The subject matter of claim 1 differs from the prior art on that:

name storing means for storing name data and corresponding position data and area data on a map

means for identifying position data or area data corresponding to the group by:

a) selecting an image data which has the oldest data-and-time information from the image data included in the group, and a coordinate comparison for finding a shortest one of distances between the image position data corresponding to the selected image data and all of the position data stored in the name storing means, or alternatively,


means for acquiring from the name storing means a name data corresponding to the position data or the area data identified by the identifying means.

T 0701/06 Grouping Images taken according to where they were taken / CASIO COMPUTERDecision

• Technical effect

Identifying the group by :

(a) either the name of the location of the oldest image in the group

(b) or the name of the area covered by the group

• but

the idea of identifying images according to subjective criteria (time, location, event) is not technical, so it does not involve a technical contribution

• Technical problem is:

how to achieve the non technical effect as above.



• Naming the group/image by location where was taken is disclosed in the prior art. The use of the nearest point in the map is an obvious implementation.

• Regarding the "coordinate comparison" is presented as a effect to be achieved (no details are given of how is actually implemented)

• Both alternative are obvious and there is no surprising effects in combining both in the same device.

Lack of an inventive step (Art. 56 EPC)

Maintain a Web site

T 787/06 A server with automatic document assembly

user

Internet

Server


• A server computer for a data communication system and adapted to transmit a document via network to a client computer in response to a request therefrom; said server comprising:

article memory means (23) for storing a plurality of article documents and respective bibliographic data;

selection rule storage means for receiving from a system administrator and storing an article document selection rule;

automatic document assembly means (17) for retrieving from said article memory means a subset of said plurality of article documents and assembling a document from at least part of each of said subset of article documents, said subset of article documents being selected according to the respective bibliographic data using said article document selection rule; and

transmission means responsive to said request for transmitting the assembled document onto said network for delivery to said client computer.

T 787/06 A server with automatic document assemblyClaim (condensed)

• A server comprising:

article memory means (23) for storing a plurality of article documents and respective bibliographic data;

selection rule storage means and storing an article document selection rule;

automatic document assembly means (17) for retrieving from said article memory means a subset of article documents and assembling a document from at least part of each of said subset of article documents,

said subset of article documents being selected according to the respective bibliographic data;.....



- problem addressed is the maintenance of website, to keep its content up to date (cumbersome as required a skilled input)

- Solve the problem to automatically assemble a document e.g. a webpage

- Automating a process so as to reduce or eliminate the need for technically skilled input from a user.

T 787/06 A server with automatic document assemblyDecision

The subject matter of claim 1 differs from the prior art in that:

• selection rule storage means for receiving from a system administrator and storing an article document selection rule;

• a subset of article documents are retrieved, selected according to the respective bibliographic data using said article document selection rule

T 787/06 A server with automatic document assemblyDecision

• The problem to be solved is

automating of the manual task of selecting the articles for the electronic newspaper according to simple criteria like relevance and topicality.

• It is self-evident that in order to solve this problem the rule must be expressed and stored electronically and that this involves no technical difficulties.

• No inventive step Art. 56 EPC.

T 787/06 A server with automatic document assemblyDecision, 1st and 2nd auxiliary request

First auxiliary request

The first specifies that the administrator is a user having privileges allowing changes to documents in the article memory means and that the user of the client need not to register or log into the server.

Using the prior art this a normal system design (Art. 56 EPC).

Second auxiliary request

The assembled document contains titles of, hypertext links to, the article documents and features of an automatic update means defining that the assembled document is amended when a new article is input.

Already in the prior art plus normal design option (Art. 56 EPC).

5. Digital Rights Management

52

T 0953/04 Software distribution / FUJITSU (27.10.2007) T 0043/06 Retrieving data / KONIKA (13.09.2007) T 0860/05 Protecting data / FUJITSU (07.03.2008)

T 0953/04 Software distribution / FUJITSU

User 1

InternetServer

Software

User 2

T 0953/04 Software distribution / FUJITSU Claim

A method of supplying software that can be used for secret communication between a first user and a second user, the method being carried out by an electronic processing apparatus and comprising the steps of:

supplying the first user with software for secret communication; and supplying the second user with software for secret communication with the first user,characterised by:supplying the first user with a retrieval code together with the software, the retrieval code being a code for

disclosure by the first user to the second user, and which identifies the software supplied to the first user;

receiving the retrieval code from the second user; andsupplying the second user with software for secret communication with the first user based on the retrieval

code.

T 0953/04 Software distribution / FUJITSU Claim (condensed)

A method of supplying software used for communication between a first user and a second user, comprising the steps of:

supplying the first user with software for communication; and for supplying the second user with software communication with the first user,characterised by:supplying the first user with a code, the code being a code for disclosure by the first user to the

second user, and which identifies the software supplied to the first user;receiving the code from the second user; andsupplying the second user with software for communication with the first user based on the code.


- the skilled person using the prior art or the general common knowledge would have not arrived at the claimed invention.

-general complains about the procedure: no additional search,

-allegation about the common general knowledge

T 0953/04 Software distribution / FUJITSU

The prior art discloses a method for supplying software that can be used for a secret communication between a first user and a second user.

• The subject matter of claim 1 differs on that:

1. defining schemes for supplying the users with a retrieval code (main),

2. certifying the second user, namely by determining whether the retrieval code has previously been used (first auxiliary request),

3. using the retrieval code to make a secret key for cypher communication (second auxiliary request).

T 0953/04 Software distribution / FUJITSU Decision

• The use of cryptographic methods in the technical context of computers and communication has technical character.

• A scheme how and to whom distribute cipher keys and software, or retrieval codes, or which method to use for making a cipher key may result from a pure business concept for licensing software or other purely non-technical considerations.

• Such understanding is supported by the description.

• The Board is not convinced that the technical contribution is more than the straightforward implementation of a business concept for licensing software

• No Inventive, Art. 56 EPC

T 0953/04 Software distribution / FUJITSU Decision

T 0043/06 Retrieving image data / Konica

T 0043/06 Retrieving image data / Konica Claim

An image data handling system, comprising: a customer's terminal (11), connected to a network, to transmit a print order and including a display and a customer's server (13), connected to a network, administrated by the customer to store image data of the customer;characterised in that said image data handling system further comprises:a retrieve server (21), connected to said network, to retrieve said image data of said customer stored in said customer's server; and a retrieve right issuing server (31), connected to said network, to issue a right to retrieve said image data of said customer, stored in said customer's server; wherein said customer's terminal transmits retrieve information to said retrieve right issuing server, said retrieve right issuing server issues a retrieve right to said retrieve server upon receipt of said retrieve information, when said retrieve server having said retrieve right accesses said customer's server, said customer's server allows said retrieve server to retrieve from said customer's server and to download said image data of said customer from the customer's server and said customer's server rejects a server having not said retrieve right to access said customer's

T 0043/06 Retrieving image data / Konica Claim (condensed)

An image data handling system, comprising: a customer's terminal , a customer's server, connected to a network, administrated by the customer to store image data of the customer;

characterised in that:

a retrieve server (21), connected to said network, to retrieve said image data,

a retrieve right issuing server (31), connected to said network, to issue a right to retrieve said image data of said customer, stored in said customer's server; ...........customer's server allows said retrieve server to retrieve from said customer's server and to download said image data of said customer from the customer's server

T 0043/06 Retrieving image data / Konica


– When a customer wanted to make a print, the customer was able to keep merely the image data of the print stored on the customer's server and was not required to upload the image data to a server administrated by another party,

– Possible to prevent unauthorised parties from retrieving and downloading the customer's image data stored on the customer's image data stored on the customer's server without the customer's permission.,

- Prior art does not disclose a server administered by customer, a retrieve right issuing server, or a retrieve server.

T 0043/06 Retrieving image data / Konica Decision

• The board considers D1 (Patent US 6 133 985) as prior art (server, printing, order, images).

• The subject matter of claim 1 differs on that:

1. the right (password) is issued by a separate server - the retrieve right issuing server,

2. the retrieve right issuing server issues the retrieve right to said retrieve server (at the fulfilment centre) upon receipt of said retrieve information from the customer's terminal,

3. the customer's server only allows access to a server having the retrieve right.

Problem to be solved:

how to automate the process of issuing the retrieve right, and to separate this task from the other functions.

- automate a business process

- It is an alternative solution for managing the retrieve rights.

- it is common knowledge to use a separate server to manage access rights.

- it can be carried on the same or different server, depending on the circumstances, such as the desiderated level of security flexibility (a document cited).

No Inventive step (Art. 56 EPC)

T 0043/06 Retrieving image data / Konica Decision

6. Modelling & Simulation

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• T 453/91: chip design method (31.05.1994)• T 49/99 Information modelling / INTERNATIONAL COMPUTERS (05.03.2002)• T 125/04 Assessment system / COMPARATIVE VISUAL ASSESSMENTS (10.05.2005)• T 914/02 Nuclear core loading / GE (12.07.2005)• T 930/05 Modellieren eines Prozessnetzwerks / XPERT (10.11.2006)• T 1227/05 Circuit simulation / INFINEON TECHNOLOGIES (13.12.2006)• T 306/04 Scheduling tasks / HONEYWELL (02.03.2007)• T 1820/06 Roller Cone Bit / HALLIBURTON (12.05.2009)

Decision Overview

Simulation not technical Simulation aspect technical

No technical means

(no computer)

refusal Article 52 EPC:T 914/02 Nuclear core

T 306/04 Scheduling tasks

T 930/05 Prozessnetzwerk

T 1820/06 Roller Cone Bit

Technical means

(computer - implemented)

refusal Article 56 EPC:T 49/99 Information modelling T 125/04 Assessment system

(T 914/02 Nuclear core remittal?)

T 1227/05 Circuit simulation

Go to Conclusion 74

T 914/02 Nuclear core loading / GE

Back to Overview

A method for designing a core loading arrangement for loading nuclear reactor fuel bundles... comprising the steps of:

– assigning to each bundle a relative reactivity value ...

– assigning to each core location a core location relative reactivity value ...

– assigning values ...– creating rules for each reactor core location ...– initially simulating a core loading ...– determining initial values for cycle energy and

design constraints ... and– identifying an optimum core loading

arrangement ... the steps of:– (i) for a first core location,

• (1) determining ... and• (2) ... searching the rules ...• (3) searching the rules to determine a

direction in which the core location relative reactivity value should be changed in order to improve cycle energy if all the design constraints are satisfied at the core location

• (4) randomly selecting a core location ...• (5) determining the constraint values ...

and– (ii) repeating steps (1) - (5) above ....

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Catchword:

Having technical character is an implicit requirement of the EPC to be met by an invention within the meaning of Article 52(1) EPC.The involvement of technical considerations, however, is not sufficient for a method which may exclusively be carried out mentally to have technical character.

Technical character may be provided through the technical implementation of the method, resulting in the method providing a tangible, technical effect, such as the provision of a physical entity as the resulting product or a non-abstract activity, such as through the use of technical means.

Back to Overview 76


"Technical character would be provided through the technical implementation of the method, resulting in the method providing a tangible, technical effect, such as the provision of a physical entity, e.g. a reactor core loaded according to a given design, or a non-abstract activity, such as through the use of technical means. The claimed method, however, lacks such a technical implementa-tion" (Reasons, 2.3.3).

Back to Overview 77

T 306/04 : Scheduling tasks / HONEYWELL

Back to Overview

A method of scheduling tasks in an industrial process / in a refinery, the method comprising the steps of:

– defining requirements of the tasks;

– creating a list of activities ...;– modifying ... activities ... wherein:– an activity may include one or

more subactivities, ...; and– breaking subactivities ... into two

or more sets;– creating a list of resources which

are used...;– for each resource, creating a list

of points of interest ...;– defining discrete and continuous

constraints ...– scheduling the activities ...;– setting of discrete and continuous

parameters ...

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T 306/04 : Scheduling tasks / HONEYWELL

Catchword:

The mere possibility of serving a technical purpose or of solving a technical problem is not sufficient to avoid exclusion under Article 52(2) and (3) EPC.

Outcome:

No technical aspect

=> refused under Article 52(2) and (3) EPC

Back to Overview 79


Back to Overview

A method of designing a roller cone bit, comprising the steps of:

– adjusting the orientation of at least one tooth on a cone, in dependence on an expected trajectory of said tooth through formation material at the cutting face, in dependence on an estimated ratio of cone rotation to bit rotation for which the torques acting on the cone about its axis sum to zero;

– recalculating said ratio, if the location of any row of teeth on said cone changes during optimization;

– recalculating the trajectory of said tooth in accordance with a recalculated value of said cone speed; and

– adjusting the orientation of said tooth again, in accordance with a recalculated value of said tooth trajectory.

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Catchword:

A technical effect, i.e. the optimized adjustment of the orientation of at least one tooth on a cone of a roller cone bit, is thereby achieved. => Article 52(2)(3) OK

Outcome:

Novel and inventive in view of the prior art

Conclusion:

Broader interpretation of technicality than T 914/02 (Nuclear Core)

Back to Overview

T 125/04 : Assessment system / COMPARATIVE VISUAL ASSESSMENTS

Back to Overview

A comparative visual assessment system comprising:

– an input and an output device– a computer system ... having a user

interface connected to a comparative visual assessment engine... comprising:

• means for assigning a plurality of weights ...

• means for assigning a plurality of scores ...

• means for determining a functional score ...

• means for determining an angle ...

• means for assigning the functional score ... and

• means for displaying the vector on the output device.

84

T 125/04 : Assessment system / COMPARATIVE VISUAL ASSESSMENTS

Catchword:

"In general, the task of designing diagrams is non-technical.

This is so, even if the diagrams arguably convey information

in a way which a viewer may intuitively regard as particularly

appealing, lucid or logical."

Outcome:

refused on lack of inventive step (A56):

"The Board cannot find that the steps performed by the

features in claim 1 have any technical effects which go

beyond those obtained by the normal use of a computer"

Back to Overview 85

T 49/99 : Information modelling / INT. COMPUTERS

Back to Overview

A method for modelling a physical system in a computer that executes an object-oriented information model based on the physical system, comprising the steps of:

(a) identifying physical elements ...(b) deriving abstract objects and their

attributes ...(c) defining relationships between

objects(d) defining instances of the objects ...(e) creating an object type hierarchy ...characterised in that(f) a sub-set of the object types within said

hierarchy are designated as base types(g) all objects, their attributes and the

relationships between the objects are stored in tables with relational database technology, ...

(h) said object table stores entries for objects of a plurality of different object types, ... and

(i) said type-specific tables store attributes ...

86

T 49/99 : Information modelling / INT. COMPUTERS

Catchword:

"Information modelling is an intellectual activity and should be treated like any other human activity in a non-technical field, which is, as such, not an invention for the purposes of Article 52(1) EPC. Only the purposive use of information modelling in the context of a solution to a technical problem may contribute to the technical character of an invention."

Outcome:

Sole technical aspect in the claim is the implementation on a computer

=> not inventive according to A56 EPC

Back to Overview 87

Computer modelling and simulation

The precedent

In T 453/91 (31.05.1994) the Board held a semiconductor chip design method to be a non-invention because the design delivered a mere image of something which did not and possibly never would exist in the real world.

The result of the claimed method was not necessarily a physical entity.

→ Therefore, an extra manufacturing step was required to avoid the exclusion from patentability.

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The Circuit Simulation decision

T1227/05, INFINEON, 13.12.06: the same board had to decide on whether a computer implemented method to simulate a circuit had technical character.

Computer-implemented method for the numerical simulation

of a circuit with a step size δ which is subject to 1/f

noise, wherein:

- the circuit is described by a model featuring input channels, noise input channels and output channels;

- the performance of the input channels and the output channels is described by a system of differential equations or algebraic differential equations;

- an output vector is calculated for an input vector present on the input channels and for a noise vector y of 1/f-distributed random numbers present on the noise input channels; and

- the noise vector y is generated by the following steps [...]

89Back to Overview

Reasoning of the Board:

The method is computer implemented → technical character;

Which other features contribute to the technical character of the method?

• Beyond its implementation, a procedural step may contribute only to the extent that it serves a technical purpose;

• Simulation of a circuit subject to 1/f noise constitutes an adequately defined technical purpose, provided that the method is functionally limited to that technical purpose.

All features relevant to circuit simulation (including formulae) contribute to the technical character of the simulation method.

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Simulation performs technical functions typical of modern engineering work. It provides for realistic prediction of the performance of a designed circuit and allows it to be developed so accurately that the chances of success of a prototype can be assessed before it is built.

Simulation methods cannot be denied a technical effect merely on the ground that they do not yet incorporate the physical end product.

Lessons learned from the Circuit Simulation decision

91

T 1227/05 : Circuit Simulation

Catchword:

I. Simulation of a circuit subject to 1/f noise constitutes an adequately defined technical purpose for a computer-implemented method functionally limited to that purpose (point 3.1).

II. Specific technical applications of computer-implemented simulation methods are themselves to be regarded as modern technical methods which form an essential part of the fabrication process and precede actual production, mostly as an intermediate step. In that light, such simulation methods cannot be denied a technical effect merely on the ground that they do not yet incorporate the physical end product (point 3.4.2).

Back to Overview 92

Any Questions?

Thank you

for your attention!

93

case law - decisions by the epo board of appeal in the field of computer implemented inventions

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