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Simulation methods serving an adequately defined technical purpose: technical

The European Patent Office decided that a computer-implemented method with mathematical steps for simulating the performance of a circuit subject to 1/f noise is technical. Here are the practical takeaways from the decision T 1227/05 (Circuit simulation I/Infineon Technologies) of 13.12.2006 of Technical Board of Appeal 3.5.01:

Key takeaways

Headnote 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).”

Headnote 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).”

The invention

This European patent application aimed at simulating or modelling the performance of a circuit under the influence of a 1/f noise, i.e. a stochastic process with a frequency spectrum whose intensity is inversely proportional to a power beta of the frequency.

The solution is based on the notion that 1/f noise can be simulated by feeding suitable random numbers into the circuit model. The application derives the numbers from a Gaussian stochastic process BFBM (fractional Brownian motion as a function of time) whose derivative is known to have a 1/f spectrum. The BFBM process and its derivative are characterised in particular by a covariance function and a covariance matrix.

Fig. 1 of EP 1 257 904
Fig. 1 of EP 1 257 904
  • Claim 1 (main request)

Is it patentable?

First of all, the Board briefly touched on the first patentability hurdle (“patent-eligibility”), which is basically no issue at the EPO:

To be eligible for patent protection it is necessary and sufficient for the claimed method to have technical character (see e.g. T 930/05 – Modellieren eines Prozessnetzwerks/ XPERT, not published in OJ EPO). As the method according to independent claim 1 or 2 is computer-implemented, it uses technical means and by that very token has technical character, see in particular T 258/03 – Auction method/HITACHI (OJ EPO 2004, 575, Reasons 4.1 to 4.7) and T 914/02 – Core loading arrangement/GENERAL ELECTRIC (not published in OJ EPO, Reasons 2.3.4 to 2.3.6).

Then, the Board assessed which of the other features of the claim actually contributed to the technical character of the invention, since only those features can establish an inventive step according to the Comvik approach. With respect to the feature “simulation of a circuit subject to 1/f noise”, the Board came to a positive assessment:

Beyond its implementation, a procedural step may contribute to the technical character of a method only to the extent that it serves a technical purpose of the method.

The board is persuaded that simulation of a circuit subject to 1/f noise constitutes an adequately defined technical purpose for a computer-implemented method, provided that the method is functionally limited to that technical purpose.

However, the Board also emphasized that the technical purpose has to be made specific in the claim:

The metaspecification of an (undefined) technical purpose (simulation of a “technical system”, see original claim 4), on the other hand, could not be considered adequate, as the purpose of a claim in this context is not to quote the technical character requirement, but to identify clear features supported by the description which meet that requirement.

Besides that, the Board also made a more general remark on the patentability of computer-implemented simulation methods:

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 view of this development it must be assumed that the outlay for implementing a technical product will increasingly shift to the numerical simulation phase, while final implementation of the simulation result in the actual manufacture of the product will entail no or only comparatively little extra innovation effort. 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.

Therefore, the Board ultimately decided that all features relevant to circuit simulation, including the steps expressed by formulae, contribute to the technical character of the simulation method and thus could potentially establish an inventive step. Since the question of inventive step itself had not been discussed before the Examining Division, the Board remitted the case back to first instance.

More information

You can read the whole decision here: T 1227/05 (Circuit simulation I/Infineon Technologies) of 13.12.2006

The decision’s finding that it is sufficient for a simulation method that the technical purpose be “adequately defined” and the claim limited to that purpose is questioned in T 1630/11, and even more in T 489/14 which even led to a referral to the Enlarged Board of Appeal.

CAD product data-model: non-technical

The European Patent Office refused to grant a software patent for a logical hierarchical data model for sharing product information across product families. Here are the practical takeaways from the decision T 0042/09 (Logical hierarchical data model/BOEING) of 10.3.2014 of Technical Board of Appeal 3.5.07:

Key takeaways

Information modelling is in principle a non-technical activity, and only a purposive use of information modelling in the context of a solution to a technical problem may contribute to the technical character of an invention.

CAD/CAM activities cannot qualify as such a purposive technical use.

The invention

This European patent application addressed the problem of modelling a “family” of products. Instead of providing a separate model for each variation of a product, a single “product data-model” is provided that captures the whole family. This product data-model models a generic product by means of a number of “logical component-usage” nodes. Each “logical component-usage” node essentially represents a logical component function and is connected, by means of a number of “component-usage” nodes, to respective “components” providing such function. The “component-usage” nodes thus represent configuration options for the “logical component-usage” node. By applying certain “applicability attributes”, at each “logical component-usage” node a choice is made from the possible “component-usages” and their corresponding “components”.

Fig. 2 of EP 1 357 486
Fig. 2 of EP 1 357 486
  • Claim 1 (main request)

Is it patentable?

First of all, the Board noted that, although the patent claim mentioned “designing” and “manufacturing” products, it did not actually include any steps in this regard:

Although claim 1 of the main request is directed to a “method of designing products using CAD and of manufacturing products using CAM”, it does not define any steps, let alone steps of designing products using CAD and of manufacturing products using CAM. Instead, claim 1 defines features of a “product data-model” without explaining its relation to a method of designing or manufacturing.

In this respect, the Board notes that the invention as disclosed in the application also rather appears to be concerned with the general use of a particular “product data-model” stored in the memory of a computer in unspecified activities related to CAD/CAM.

The actual subject-matter, namely the definition of an information model, was considered to be non-technical:

The features of claim 1 relating to the “product data-model” define an abstract information model. Indeed, these features are worded in abstract terms and make no reference to any concrete physical representation of the product data-model.

According to decision T 49/99 of 5 March 2002, reasons 7, information modelling is in principle a non-technical activity, and only a purposive use of information modelling in the context of a solution to a technical problem may contribute to the technical character of an invention. For the reasons given under point 2.32.3 , the Board considers that the claimed connection with CAD/CAM activities cannot qualify as such a purposive technical use. The product data-model does not enable, improve, or otherwise contribute to the solution of a concrete technical problem.

Therefore, the Board ultimately decided that the patent application does not provide any technical contribution that could be the basis for an inventive step.

More information

You can read the whole decision here: T 0042/09 (Logical hierarchical data model/BOEING) of 10.3.2014

EUROPEAN SOFTWARE PATENTS February 2019 updates

February 2019 marks the proud start of EUROPEAN SOFTWARE PATENTS with the first batch of decisions:

Two somewhat older decisions relate to the very fundamentals of the EPO’s software patent examination standard: According to the “any hardware approach”, the patent eligibility hurdle only requires one single technical feature (e.g. a computer). The challenging test for most European software patents is inventive step, where only those features which contribute to the solution of a technical problem are taken into account (the so-called “Comvik approach”).

(more…)

Automatically uninstalling apps after trial phase: non-technical

The European Patent Office refused to grant a software patent on the concept of automatically uninstalling apps after the trial phase. Here are the practical takeaways from the decision T 1098/12 (Computer program with limited lifetime/Nokia) of 12.7.2017 of Technical Board of Appeal 3.5.06:

Key takeaways

Enabling users to try out software on a mobile device: not a technical problem.

Deleting/uninstalling data and applications which are no longer needed from mobile devices: obvious (given the limited memory capacity of these devices).

Automating a manual process: obvious (the automation as such).

Preserving user settings in view of a possible future re-installation of a deleted application: obvious.

The invention

This patent application starts from the known pricing models for software, like freeware, shareware, and time or functionality limited versions. In contrast to these models, the invention lets users download and try out an app on their mobile devices, but deletes the app automatically after a certain time.

Fig. 4 of EP 1 130 495
Fig. 4 of EP 1 130 495

     
  • Claim 1 (main request)

Is it patentable?

Readers who are familiar with the COMVIK approach will probably have an idea of the Board’s opinion. First of all, the overall problem to be solved by the invention (trying out software on a mobile terminal for a limited time at a lower price) was considered to be non-technical:

4.2.1 From the wording of claim 1 of the main request, in connection with the statements made on pages 2 to 4 of the description, the board concludes that the main aim of the present invention is of a commercial nature, i.e. to provide a new model for the commercialisation of software on “mobile terminals”. More specifically, the problem to be solved by the method of claim 1 is to enable users to try out software on a mobile terminal for a limited time at a lower price (see in particular page 4, lines 12 to 14).

4.2.2 The board considers this to be a non-technical vending model. It should therefore be seen as part of the requirements specification provided to the skilled person who has the task of implementing the vending model by technical means.

Because mobile devices typically have only limited memory capacity, the Board considered it to be obvious to solve this problem by automatically removing apps that are no longer usable:

4.2.4 Given that the task of the skilled person is to time-limit the use of applications specifically on “mobile terminals”, i.e. on devices which are relatively small and consequently have limited memory, the board considers it straightforward for the skilled person to take this limitation into account. One obvious way to do this is to arrange for the memory occupied by an application to be released, preferably automatically, once the application is no longer usable, i.e. once its lifetime has expired.

4.2.5 It is thus considered obvious for the skilled person to maintain an application-licence database which specifies whether the lifetime for a given application has expired for a given user, and to configure the application, which at some time has been downloaded from an application database, to delete or uninstall itself automatically from the mobile terminal if its lifetime has expired.

The patent applicant had argued that the problem to be solved is technical, namely “how to achieve (more) efficient memory handling in a mobile terminal”. Also this was not successful:

4.2.9 The board’s conclusion would however remain the same, even if it were to accept this alternative problem to be solved. Indeed, it is firstly considered obvious that memory on mobile devices should be handled efficiently, given the limited memory capacity on such devices. Secondly, the user of the device will, when the available memory becomes insufficient, try to release memory that is no longer needed. Since the memory is used by data and by applications, the user will delete/uninstall data and applications which are no longer needed. For applications this would for instance be the case when their lifetime has expired.

The board agrees with the practice generally adopted in the boards of appeal, according to which the automation as such of a manual process cannot be considered inventive. For the rest, a database which keeps track of all necessary information, such as the lifetime of application licences, would be a standard tool used by the programmer entrusted with the automation task. Hence, the subject-matter of claim 1 of the main request would be considered non-inventive, even if one started from the technical problem mentioned by the appellant.

The patent applicant also tried to get at least an auxiliary request granted. The limitation was that customised settings of the app are retained after the app deletes itself. But the board did not change its mind:

5.4 The appellant has however not disputed the fact mentioned in point 8.2 of the summons that the commonly known “registry” which has existed in Microsoft Windows since version 3.1 (introduced in 1992) is routinely used to maintain customised settings of an application on the device where the application is installed, even after the application has been uninstalled. Instead, the appellant merely implies (reply to the summons, last page, third paragraph, first sentence) that none of the cited documents disclose such a way of proceeding.

5.5 […] In the context of commonly known mobile devices, it happens routinely that applications are uninstalled and later re-installed. The board firstly considers it obvious that a skilled person will want to balance the amount of memory required for applications or settings and the effort needed to recover deleted data. The board secondly considers it to be known that the memory space occupied by an application is typically much larger than that occupied by its user settings, while the effort required to restore an application is typically much less than that to restore its user settings. In view of this, the board considers it obvious that the skilled person will apply known techniques which preserve user settings in view of a possible future re-installation of a deleted application.

Therefore, the Board ultimately decided that the patent application does not provide any technical contribution that could be the basis for an inventive step.

More information

You can read the whole decision here: T 1098/12 (Computer program with limited lifetime/Nokia) of 12.7.2017

Caching security information of a smart card: technical

The European Patent Office refused to grant a software patent for a security token cache. Here are the practical takeaways from the decision T 1307/11 (Security token cache/ASSA ABLOY) of 14.3.2017 of Technical Board of Appeal 3.5.06:

Key takeaways

Caching data to speed up frequent accesses is common general knowledge.

Using APIs is a matter of workshop practice for a person with the appropriate programming skill.

The invention

The patent application states that when a token receives many requests in a short period of time, some requests may have to wait, which may be aggravated by a slow serial data connection, but also by the need for exclusive access to the smart card to protect data integrity.

As a solution to this problem, the application proposes the provision of a “memory cache” for the token.

In essence, claim 1 defines that when an application requests information from the token (5), it will first be referred to the memory cache (45) to see whether the information is available and “current” in the cache. If yes, the information is retrieved and returned from the cache (45), otherwise the request is forwarded to the token (5).

Fig. 1a of EP 1 431 861
Fig. 1a of EP 1 431 861
  • Claim 1 (main request)

Is it patentable?

Interestingly, the Board did not dispute that the concept of caching data is technical.

However, the Board took the view that caching, as well as refreshing a cache, is common general knowledge:

2. D2 relates to a cache for a web server. In its background section, it discloses caching to be a known technology to speed up frequent accesses to slow storage devices (page 1, line 9, to page 2, line 2). D2 also discloses that cached data may become “invalid” when the original data in the storage device has been changed, and that the data in the cache may then have to be refreshed (see paragraph bridging pages 1 and 2). The board considers these features of caching to belong to the common general knowledge in the art , and the appellant did not challenge that view.

One remaining difference over the prior art was that the data being cached is stored in the memory of a “hardware security token”. This, however, was considered to be straight-forward by Board:

5.1 As regards feature (a), the board takes the view that the idea of providing a cache for memory on a security token is, in itself, obvious. As explained above, the claimed “hardware security token” is in particular a slow memory device. Caching was an established tech­nology for speeding up access to slow memory devices. Therefore, in the board’s judgement, the skilled person would not hesitate to use a cache for a “hardware security token” if the cost of the cache was justified by the gained speed.

Furthermore, the security token is accessed via a “security token API” and the cache is accessed via a “cache API”. However, also these differences were considered to be obvious:

5.2 As regards features (b) and (c), the board considers that the provision of APIs is a matter of workshop practice for a person with the appropriate programming skill.

Therefore, the Board ultimately decided that the subject-matter of the claims does not involve an inventive step.

More information

You can read the whole decision here: T 1307/11 (Security token cache/ASSA ABLOY) of 14.3.2017

Programming, modelling, new programming languages: non-technical

The European Patent Office refused to grant a software patent for programming, modelling and new programming languages. Here are the practical takeaways from the decision T 1630/11 (Modelling a multiprocessor system/THE MATHWORKS) of Technical Board of Appeal 3.5.06:

Key takeaways

Neither modelling nor programming is, by itself, a technical undertaking.

Modifications to a programming language that enable the programmer to develop a program with greater ease, speed or accuracy, do not make a technical contribution to the art.

Even if the technical purpose of a simulation method is “adequately defined” and the claim is limited to that purpose, it is questionable whether this makes a technical contribution to the art.

The invention

The invention related to the modelling and simulation of a multiprocessor system in a graphical programming environment.

For the modelling step, the user could specify a functional model and a deployment model, as well as a mapping of functional units in the functional model to processing units in the deployment model.

The deployment model could be executed in simulation mode or deployed on a real-time system. To make this possible, the deployment model may have to be compiled and linked and then executed, or it may be executed in interpretive mode.

Fig. 4a of EP 1 889 154
Fig. 4a of EP 1 889 154
  • Claim 1 (main request)

Is it patentable?

As already decided by several other EPO Boards of Appeal, neither modelling nor programming provides a technical contribution that could be the basis for a European software patent:

6. There is broad agreement in the jurisprudence of the boards of appeal that neither modelling nor programming is, by itself, a technical undertaking (with regard to modelling see in particular the catchwords of T 49/99, T 354/07, T 1171/06 and T 42/09, point 2.4 of the reasons; with regard to programming see for instance the catchword of T 1539/09 and T 2270/10, point 7 of the reasons).

Further, the Board questions whether simulation methods can provide a technical contribution even if they are limited to an adequately defined technical purpose:

7. […] Specifically, it was found that “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” (see catchword and point 3.1 of the reasons). In T 1227/05, the deciding board argued that the claimed simulation made it possible to reliably predict how a designed circuit would behave in reality and thus to assess whether manufacturing the circuit would be worthwhile (see T 1227/05, point 3.2.2 of the reasons). As a consequence, all mathematical steps in the claimed method were found to contribute to inventive step (see esp. point 3.2.4 of the reasons).

7.1 It may be questioned whether, for a computer-simulated simulation method to make a technical contribution to the art, it is sufficient that the technical purpose be “adequately defined” and the claim limited to that purpose , as T 1227/05 appears to suggest. Similar doubts were expressed in T 1265/09 (point 1.13 of the reasons, penultimate paragraph) and T 531/09 (point 3 of the reasons).

However, the Board did not decide this question, since the present patent application was said to already fail providing such an adequately defined technical purpose:

7.2 In the present case, however, this question may be left open because the board considers that the technical purpose of the claimed simulation is not adequately defined. Present claim 1 is concerned with simulation only insofar as it specifies the execution of a multi-processor specification developed as a graphical program. The claim is not concerned with the “simulation” of any specific such processor, nor any specific class of processors. Rather than the device being modelled and simulated, the claim indicates the programming means with which the model can be specified, namely “functional units”, “processing units”, “IPC channels”, “read/write blocks” and “input/output blocks”.

8. The major part of claim 1 is thus concerned with the expressions of a graphical programming environment which were found in T 1539/09 (reasons 5) not to contribute to inventive step (see also T 2270/10, reasons 7), even if, as the appellant argues, it “enables users to” develop the program in question “in a convenient and efficient way” (see the grounds of appeal, page 2, paragraph 3) and simplifies the modelling or the model by “enabl[ing] the user to separate the algorithmic model from the final deployment hardware” (see the grounds of appeal, page 2, paragraph 4).

Also the appellant’s arguments in favour of technical character did not convince the Board:

9.2 The appellant also argues that the invention enables users “to efficiently model and simulate a multi-processor system”, in particular a “hierarchical one” (grounds of appeal, page 3, paragraphs 1–2). However, the board follows its earlier jurisprudence according to which modifications to a programming language or system that enable the programmer to develop a program with greater ease and thus, presumably, speed and accuracy, do not make a technical contribution to the art.

Therefore, the Board ultimately decided that the patent application does not provide any technical contribution that could be the basis for an inventive step.

More information

You can read the whole decision here: T 1630/11 (Modelling a multiprocessor system/THE MATHWORKS)

Methods which use technical means are patent-eligible

This is one of the landmark decisions when it comes to the patentability of software. The EPO Board of Appeal established that patent claims, including method claims, are patent-eligible if they use technical means. In other words, a “computer-implemented method” is patent-eligible already due to the presence of the word “computer”. 

On the merits, however, the European Patent Office refused to grant a software patent for an automatic auction method. Here are the practical takeaways from the decision T 0258/03 (Auction method/HITACHI) of 21.4.2004 of Technical Board of Appeal 3.5.01:

Key takeaways

Headnote I: “A method involving technical means is an invention within the meaning of Article 52(1) EPC (as distinguished from decision T 931/95-Controlling pension benefits system/PBS PARTNERSHIP)(see points 4.1 to 4.4 of the reasons).”

Headnote II: “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 (see point 5.7 of the reasons).”

The invention

This European patent application relates to an automatic auction method executed in a server computer. The auction starts with data exchange between the clients and the server to collect bids from the participants. Each bid comprises a “desired price” and a “maximum price in competitive state”. After this initial phase the auction is automatic and does not require that the bidders follow the auction on-line. An auction price is set and successively lowered (which is typical for so-called Dutch auctions) until it reaches the level of the highest bid or bids as determined by the “desired price”. In case of several identical bids the price is increased until only the bidder having offered the highest “maximum price” is left. He is declared successful.

Fig. 2 of EP 0 828 223
Fig. 2 of EP 0 828 223

  • Claim 1 (main request)

Is it patentable?

First of all, the Board made it clear that system or apparatus claims that constitute a physical entity of product are always technical and thus patent-eligible:

For these reasons the Board holds that, contrary to the examining division’s assessment, the apparatus of claim 3 is an invention within the meaning of Article 52(1) EPC since it comprises clearly technical features such as a “server computer”, “client computers” and a “network”.

This conclusion is in conformity with decision T 931/95, where it is stated in headnote III that: “An apparatus constituting a physical entity or concrete product, suitable for performing or supporting an economic activity is an invention within the meaning of Article 52(1) EPC.”

Moreover, the Board established that also method claims pass the patent-eligibility hurdle already if they recite a technical means:

The reasoning above (point 3.5) is independent of the category of the claim. Thus, in the present case, also the method of claim 1 is not excluded from patentability under Article 52(2) EPC.

[…] It is therefore concluded that, in general, a method involving technical means is an invention within the meaning of Article 52(1) EPC.

Turning to inventive step, however, the Board did not attribute any technical character to the part of the claimed method that concerned the auction method. This part of the claim could thus not establish an inventive step according to the Comvik approach:

In the Board’s view, however, 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, ie it is not a technical solution to the delay problem described (and solved by technical means) in documents D2 and D6, but a solution 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.

Notably, the Board also carefully assessed whether some of the auction steps were perhaps designed to be particularly suitable for being computer-executed. In this case, such steps would have contributed to inventive step. However, in the end the Board did held that the particular auction step, even if it was considered technical, was obvious:

Nevertheless, if a step of a method has been designed in such a way as to be particularly suitable for being performed on a computer, it has arguably a technical character. Suggesting such a step might require technical considerations (cf T 769/92, headnote I), namely of the working principles of a computer. This view was also expressed in T 52/85 (not published in the OJ EPO), where a method for displaying a list of expressions semantically related to another linguistic expression was found non-technical exactly because no such technical considerations were necessary: the method was “nothing else but what a human being searching for semantically related words would do” (see point 5.8 of the decision).

The invention under examination may contain such a feature which does not correspond to what a human being would do if performing the auction without computer support. This is the step of raising the auction price successively in order to determine the highest maximum price offered by bidders having proposed the same desired price (step (h). An auctioneer would presumably do this simply by looking at the bids. Still, the Board is convinced that this way of ranking the bids is a routine programming measure well within the reach of the skilled person. Thus, this feature, even if possibly constituting a technical solution to a problem, would have been obvious to the person skilled in the art of data processing.

Therefore, the Board ultimately decided that the patent application does not provide any technical contribution that could be the basis for an inventive step.

More information

You can read the whole decision here: T 0258/03 (Auction method/HITACHI) of 21.4.2004