Author Archive

Server load balancing based on mathematical calculations: technical

The European Patent Office granted a software patent for a server load balancing technique based on mathematical calculations. Here are the practical takeaways from the decision T 0318/10 (Load Distribution/CLUB IT) of 2.9.2014 of Technical Board of Appeal 3.5.06: 

Key takeaways

Improving the resource consumption in a server is a technical effect

A basic difference between a mathematical method and a technical process can be seen in the fact that a mathematical method is carried out on numbers and provides a result also in numerical form, the mathematical method being only an abstract concept prescribing how to operate on the numbers and producing no direct technical result as such. In contrast thereto, if a mathematical method (in the present case the optimisation function) is used in a technical process (in the present case assigning a server from among a plurality of servers to process a client request), that process is carried out on a physical entity by some technical means implementing the method and provides as its result a certain change in that entity.

The invention

This patent application generally relates to server load balancing, i.e. to a method of load distribution to assign a server from multiple network-connected servers for the execution of a client’s processing request. The load distribution function can be installed on any server in the network.

Fig. 1 of EP 1 696 324
Fig. 1 of EP 1 696 324
  • Claim 1 (main request)

Is it patentable?

In this case, the load distribution function was defined by mathematical formulae and thus the question to be decided was essentially whether such a mathematical optimization was technical:

The board does not agree with the appealed decision that the mathematical formulation of the optimisation function used in a load distribution method in a computer network is non-technical, or, put another way, without technical effects. As stated in T 208/84 (Reasons, point 5) (“Computer-related invention/VICOM”; see OJ EPO 1987, 14), a basic difference between a mathematical method and a technical process can be seen in the fact that a mathematical method is carried out on numbers and provides a result also in numerical form, the mathematical method being only an abstract concept prescribing how to operate on the numbers and producing no direct technical result as such. In contrast thereto, if a mathematical method (in the present case the optimisation function) is used in a technical process (in the present case assigning a server from among a plurality of servers to process a client request), that process is carried out on a physical entity by some technical means implementing the method and provides as its result a certain change in that entity. In the present case the optimisation function as defined by claim 1 results in a change in the resource consumption of the server system which is a technical effect.

Since none of the prior art on record provided a hint towards the claimed distance calculation and process request allocation techniques, the first instance rejection was lifted by the Board and a patent was granted.

More information

You can read the whole decision here: T 0318/10 (Load Distribution/CLUB IT) of 2.9.2014

EUROPEAN SOFTWARE PATENTS March 2019 updates

March came with seven new decisions in the EUROPEAN SOFTWARE PATENTS knowledge base relating to artificial intelligence, computer simulations, information modelling and Internet search engines:

Software patents for artificial intelligence?

Artificial intelligence is undoubtedly one of the hottest topics in tech these days. So far, there are only few decisions of the EPO Boards of Appeal dealing specifically with AI.

But some questions have been decided already: According to one Board, the question whether two text documents belong to the same class of documents in respect of their textual content is non-technical. Similarly, classifying data records for a non-technical purpose (e.g. for billing) was considered to be a non-technical issue.

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Improving Internet search results: probably technical if reliably achieved

The European Patent Office refused to grant a software patent for an Internet search engine that improves the quality of the search results. Here are the practical takeaways from the decision T 1849/17 (Search engine with user feedback/PINTEREST) of 12.2.2019 of Technical Board of Appeal 3.5.06:

Key takeaways

Producing relevant search results quicker (or higher up on the list of results) and thus reducing the time until a user finds a “hit” in the search results may be a technical effect (left open in this decision).

The invention

The application relates to Internet search engines and concerns the problem of improving the perceived quality of the search results. More specifically, the application addresses the problem of making search results more “relevant” for the user. In prior art solutions, discussed in the application, the relevance of a document was assessed on the basis of the content of that document, of links between web pages or the feedback of test users. The invention essentially proposes to allow direct relevance feedback by users on individual results returned in response to a query.

Fig. 2 of EP 1 866 738
Fig. 2 of EP 1 866 738

The application proposes modeling the “probability” that a given document is relevant by “logistic regression” based on features of the document such as binary values each indicating the presence or absence of a feature) and “parameters” theta (effectively weights). This model is modified in view of the user feedback, especially the weighted parameter psiu per user u. Users’ feedback may be clustered, for instance in view of groups of users, or in order to detect and exclude search engine optimizers and spammers as outliers due to the “eccentricities in their parameters”. Additional parameters gammac determined per cluster c may be used to adapt the relevance model.

  • Claim 1 (main request)

Is it patentable?

First of all, the Board did not follow the applicant’s argument that the invention results in a faster and more efficient execution of a search:

The appellant argued that the claimed invention provided a “faster and more efficient execution of a search” and a “faster and more efficient ranking” of search results “on a computer”, which had to be considered as technical problems. In particular, the features of “discarding” previous user feedback (see claim 1, step a, last phrase) and that of eliminating “bias” by reference to a “group model” contributed to these effects (see the grounds of appeal, page 2, paragraph 5, and page 5, paragraph 2).

The board does not accept that the search itself executes any “faster” or “more efficient[ly]” due to the claimed relevance feedback, in particular because the search results are ranked after retrieval. Likewise, the ranking itself cannot be said to be determined any “faster” or “more efficient[ly]”, inter alia because the reference for this comparison is not indicated (“faster and more efficient” than what?).

On the one hand, the Board did not rule out that reducing the time until the user finds a hit in the search results may probably be considered technical. However, the Board did ultimately not decide on this question since the effect was found not to be reliably achieved:

Generally speaking, the invention is meant to produce relevant search results quicker (or higher up on the list of results) and thus to reduce the time until a user finds a “hit” in the search results. A relevance feedback that would reliably achieve this effect might save the user certain work, such as clicking through a long list of search results or having to repeat a search. The board does not wish to exclude the possibility that this may be considered as a technical effect by analogy to the ratio of T 0643/00, which is that providing a technical tool for efficient search, retrieval and evaluation of images may be considered a technical problem solved.

This issue need not be decided, however, because it cannot be established that the invention does indeed reliably and reproducibly have the alleged effect. Without knowing any details about how the relevance models are computed from (or based on) the user feedback and how the groups are determined, there is no basis for assessing even the probability that – or in which situations – the relevance feedback would actually be pertinent for an individual user.

The board therefore concludes that the claimed invention cannot be said to have the effect of saving the user work in the above-mentioned sense.

Another feature of the invention was that a previous user rating can be discarded. But also this did not convince the Board:

Likewise, it cannot be established that discarding a previous user rating has this effect. For instance, it is not guaranteed that the last user feedback on a particular document is relevant for the next search. The user might, for instance, in one instance search for holiday destinations and rate highly a document mentioning the country Turkey, and in the next instance look for Thanksgiving recipes and be interested in documents mentioning turkey, the bird.

Thus, the Board took the view that the mathematical model used to determine the relevance of the search results was just a mathematical method as such:

Hence, the board must conclude that the relevance formula (in step c of claim of the main request and auxiliary request 1 or step g of auxiliary 2) is just any mathematical formula – and, as such, excluded from patentability by analogy to the exclusion of Article 52(2)(a) and (3) EPC 1973 – which does not contribute to the technical character of the claimed invention and, therefore, cannot contribute to inventive step (see T 641/00, headnote 1).

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 1849/17 (Search engine with user feedback/PINTEREST) of 12.2.2019

Information modelling as such: non-technical

The European Patent Office refused to grant a software patent for analysing a physical system and providing an information model reflecting its properties. Here are the practical takeaways from the decision T 0049/99 (Information modelling/INTERNATIONAL COMPUTERS) of 5.3.2002 of Technical Board of Appeal 3.5.01:

Key takeaways

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.”

The invention

This European patent application essentially concerned a method for modelling a physical system in terms of abstract objects representing physical elements of the system and relationships between the objects. The preferred embodiment of the invention aimed at providing a single, comprehensive description of the equipment in a power system, including network topology, operational constraints and limits, telemetry and communication details. The claims, however, were not restricted to the specific power system.

Fig. 1 of EP 0 658 260
Fig. 1 of EP 0 658 260

  • Claim 1 (main request)

Is it patentable?

Claim 1 mainly concerned a method for analysing a physical system and providing an information model reflecting the essential properties of the physical system. Information modelling, however, was considered to be an intellectual activity and thus non-technical by the Board:

Information modelling is a formalized process carried out by a system engineer or a similar skilled person in a first stage of software development for systematically gathering data about the physical system to be modelled or simulated and to provide so to say a real world model of the system on paper. Although information modelling embodies useful concepts and methods in developing complex software systems, it is as such an intellectual activity having all traits typical for non-technical branches of knowledge and thus being closely analogous to the non-inventions listed under Article 52(2)(a) and (c) EPC.

Interestingly though, the Board noted that the situation might be different if information modelling was used “purposively” for solving a technical problem:

In examining inventive step, it should hence 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, as e.g. is the case for the preferred embodiment relating to the control and management of technical processes in a power system, may contribute to the technical character of an invention.

However, this did not help in the present case since the claims were not restricted to particular technical use case:

The claimed invention, however, is not restricted to power systems; as expressly indicated in the description the invention may be applied to various types of systems, “large, complex systems” including manufacturing plants and other physical systems (see description, page 30, lines 10 ff.). Claim 1 uses the generic expression “physical system”, which is actually a term including any real world system, even business and administrative organisations.

In the light of the broad meaning of the expression “physical system”, information modelling in terms of the first part of claim 1 has to be construed as an abstract non-technical activity using abstract constructs like objects, types, attributes, and relationships.

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 0049/99 (Information modelling/INTERNATIONAL COMPUTERS) of 5.3.2002

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”).

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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)