Author Archive

Predicting the formation of mould fungi: technical

In this decision, the European Patent Office considered predicting the formation of mould fungi based on experiments technical. Here are the practical takeaways of the decision in German language) T 0547/14 (Verfahren zur Vorhersage von Schimmelpilzbildung/FRAUNHOFER) of 29.1.2020 of Technical Board of Appeal 3.5.01:

Key takeaways

Method steps for determining physical quantities are likely considered technical since technical devices have to be used to carry them out.

The invention

This European patent application relates to a method for predicting the formation of mould fungi. Biological germination conditions or growth conditions for at least one mould fungus, which are determined experimentally or by a computer, are compared with the hygrothermic conditions on an object to be examined. Based on the obtained data, it is determined whether the germination or the the growth conditions are present on the examined object (cf. WO 03/014986 A2, Abstract).

Fig. 3 of WO 03/014986 A2

Here is how the invention is defined in claim 1 (translated by by the author of this post):

  • Claim 1 (main request)

Is it technical?

According to first instance examining division independent claim 1 would only comprise features that refer to a mental act and/or to an abstract concept. The only technical feature would be the computer that is presented as an option to compare determined biological germination conditions and/or growth conditions. However, according to claim 1, this comparison could also be done experimentally, i.e. without requiring any technical means:

3. The Examining Division found the subject-matter of claim 1 of the main request without the feature “with a computer” to be method that falls under the exclusion conditions of Article 52(2) and (3) EPC.

3.1 The Examining Division submitted that the features of claim 1, which related to an experimental determination of biological germination conditions for moulds, did not differ from a purely intellectual activity, since the “experimental” determination was not technically specified and could be carried out by pure cognitive observation.

As a result, the Examining Division rejected the present application, without considering prior art. In order to counter this argument, applicant submitted that the claimed determination steps would refer to physical quantities. Hence, they would have to be considered as technical.

The Board in charge agreed to applicant’s argumentation and explained that the claimed determination steps are of technical character, even when no computer is used to carry them out. The reason is that an “experimental” determination would require the use of technical means:

3.6 If these are determined ‘experimentally’, it is necessary to carry out experiments and thus to use technical means. In this respect, the Board agrees with the appellant that the subject matter claimed is thus technical. If a computer is used, the subject matter is also technical with the use of this technical means.

The Board in charge concluded that the features relating to the determination steps as claimed have to be considered for the assessment of inventive step. Hence, the Board in charge remitted the case back to the first instance Examining Division for further examination, including a consideration of the searched prior art documents.

More information

You can read the whole decision here: T 0547/14 (Verfahren zur Vorhersage von Schimmelpilzbildung/FRAUNHOFER) of 29.1.2020.

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Generated metadata file for OLAP tools: non-technical

In this decision, the European Patent Office considered a generated metadata file as non-technical. Here are the practical takeaways of the decision T 2573/16 (OLAP-cube specification/ACCENTURE GLOBAL SERVICES) of 6.11.2019 of Technical Board of Appeal 3.5.07:

Key takeaways

If non-technical features could not contribute to a technical effect because they are non-technical, there would be no need for analyzing whether these features produce a technical effect over a computer. Hence, it has always to be analysed whether, and to what extent, a non-technical scheme, when implemented on a computer, produces a technical effect over that computer.

While a file itself is likely non-technical, the generation thereof might be technical.

The invention

This European patent application relates to online analytical processing (OLAP) which is a category of tools used to provide access to data in a database. With OLAP, multidimensional analytical queries can be quickly answered. Databases configured for OLAP may use a  multidimensional data model that provides multidimensional views of data for quick access to strategic information for further analysis (cf. EP 2 312 465 A1, para. [0002]).

OLAP tools use OLAP cubes to achieve efficient data retrieval which is a data structure that organizes categories of data by dimensions and measures (cf. EP 2 312 465 A1, para. [0003]). If users want to change the OLAP cube, such as add or remove dimensions, a cumbersome process must be followed by the technical solution team to properly implement the changes. The back-and-forth communications and processes needed to implement changes to the OLAP cube are burdensome (cf. EP 2 312 465 A1, para. [0005]).

The present application seeks to to improve OLAP systems by means of a template metadata file including metadata defining the structure of the OLAP cube (cf. EP 2 312 465 A1, para. [0006]).

Fig. 1 of EP 2 312 465 A1

  • Claim 1 (main request)

Is it technical?

According to the first instance Examining Division, almost all features of claim 1 would refer to non-technical aspects:

4.1 (…) Point 10.1.1.5 of the decision essentially repeats point 10.1.1.3 by stating that the only technical aspects present in claim 1 were the feature specifying that the metadata receipt module was “configured to receive input via a user interface”, which implied the use of a general-purpose computer, and the features relating to “files”, which were to be interpreted as “electronic data files in a computer memory” of that general-purpose computer. All other aspects of claim 1 were non-technical in nature and therefore formed “part of a given framework within which the technical problem [was] posed, for example in the form of a requirements specification provided to the person skilled in a technical field”.

Hence, considering a common personal computer as closest prior art, the Examining Division rejected the present application due to lack of inventive step.

According to the present decision, however, the Board in charge considered the reasoning of the Examining Division not persuasive:

4.5  In sum, the contested decision’s inventive-step reasoning is incomplete as it stands, and the general approach to assessing inventive step taken in the decision is prone to overlook technical contributions made by non-technical features.

In more detail, the Board argues that the Examining Division failed to assess whether the claimed non-technical scheme produces a technical effect or not:

4.2 Although in many cases the implementation of a non-technical scheme on a general-purpose computer results in subject-matter that is obvious, this is not inevitably the case. As the Examining Division essentially stated in point 10.1.1.4 of its decision, non-technical features are to be taken into account in the assessment of inventive step to the extent that they interact with the technical subject-matter of the claim to solve a technical problem or bring about a technical effect (see G 1/04, OJ EPO 2006, 334, reasons 5.3; T 154/04, OJ EPO 2008, 46, reasons 5, under (F), and 13 to 15). It therefore still has to be analysed whether, and to what extent, the non-technical scheme, when implemented on a computer, produces a technical effect over that computer.

Therefore, the Board in charge re-examined inventive step in all detail. In this respect, the Board, however, came to the conclusion that the process of generating a metadata file may be technical, but not the metadata file as such:

5.4 The overall effect of the four modules is the generation of a metadata file which defines the structure of an OLAP cube and which is to be used by the claimed system’s conventional OLAP functionality.

This generated metadata file cannot be technically distinguished from the metadata file produced by the technical solution team of the prior art: the four claimed modules do not ensure any special property of the generated metadata file that translates into a technical effect, occurring when the file is used by the system’s conventional OLAP functionality, that is different from the technical effects that occur when a metadata file produced by a technical solution team is processed.

(…)

Hence, the generated metadata file does not represent a technical effect achieved over the prior-art OLAP system. Any technical effect is thus to be found in the generation process itself.

However, the Board considered the technical aspects of the generation to be trivial:

Indeed, the only technical features here relate to reading and writing data from and to files and the use of implicit input and output devices for receiving input from and presenting information to the user. Since these features are well known and are used for their normal purpose, they do not support an inventive step.

As a result, the Board dismissed the appeal.

More information

You can read the whole decision here: T 2573/16 (OLAP-cube specification/ACCENTURE GLOBAL SERVICES) of 6.11.2019.

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Cost-based optimisation of a query in a relational database system: technical

The European Patent Office considered cost-based optimisation of a query in a relational database system technical. Here are the practical takeaways from the decision T 1965/11 (Cost-based materialised view selection/MICROSOFT TECHNOLOGY LICENSING) of 24.3.2017 of Technical Board of Appeal 3.5.07:

Key takeaways

Retrieving data in a computer database is normally considered to have technical character.

More specifically, cost-based query optimisation that searches for low-cost query execution plans using a cost estimate for computer resources involves further technical considerations.

The invention

The application underlying the present decision relates to a database query optimizer that selects materialized views on a cost basis (cf. EP 1 193 618 A2, para. [0001]). A known concept regarding databases is to materialize (store) the result of queries and then use the computed result when similar queries are submitted to the database (cf. EP 1 193 618 A2, para. [0004]). For maximum flexibility, applications should not need to be aware that certain views exist, or are materialized. A query processor should identify matches between user queries and existing pre-computed results, and use such results when applicable (cf. EP 1 193 618 A2, para. [0005]). However, on some complex queries, view utilization will be possible only in sub-expressions of the complete query. These sub-queries may appear only after some reordering has taken place, which is a time-consuming task (cf. EP 1 193 618 A2, para. [0009]). Hence, the present application aims at providing a cost based query optimizer that determines the applicability of materialized views to a query. View utilization alternatives are generated in the exploration stage of optimization, so that interaction with other transformations in complex queries is taken into account. A final decision on whether to use a materialized view is based on estimated costs (cf. EP 1 193 618 A2, para. [0010]).

Fig. 2 of EP 1 193 618 A2

  • Claim 1 (auxiliary request IV)

Is it patentable?

The examining division rejected the present application at the end of the examining phase due to added subject-matter. This decision was appealed. In the statement of grounds of appeal, the appellant requested that the decision be set aside and also asked the Board to decide that the claims of at least the fourth auxiliary requests were allowable.

A plurality of prior art documents were discussed during the oral hearing. When it came to the assessment of inventive step, the Board in charge argued as follows:

5.1 According to decision T 1569/05 of 26 June 2008, reasons 3.6, retrieving data in a computer database is normally considered to have technical character. While the method of claim 1 does not include the actual data retrieval, the Board considers that the cost-based optimisation of a query in a relational database system has normally technical character (see T 1003/09 of 29 April 2015, reasons 13.3 and 13.5). Such cost-based query optimisation searches for low-cost query execution plans using a cost estimate for the computer resources (such as CPU, main memory or hard disk) needed to execute a query plan (see D8, section 2, for technical background). Hence, this cost-based approach involves further technical considerations (see opinion G 3/08, “Programs for computers”, OJ EPO 2011, 10, reasons 13.5) relating to the internal functioning of the computer system.

Furthermore, the Board was of the opinion that none of the cited prior art documents could render-obvious the subject-matter as defined by claim 1 of auxiliary request IV:

5.3 None of these prior-art documents addresses the problem of extending a table of alternatives generated by the query optimiser by adding further alternatives using materialised views. The invention makes it possible to find low-cost query execution plans that make use of the available materialised views in order to improve query performance (see page 2, third paragraph). Moreover, in order to explore the search space for such low-cost query execution plans, it proposes integrating the materialised views into the table of alternatives during the plan exploration stage. For this integration, it is necessary to match query plans with materialised views in order to identify useful plan alternatives for such views. The invention teaches using query graphs for the matching in order to substantially reduce the complexity of extracting operator trees which encode a specific join order. In the technical context of query optimisation in relational database systems, this teaching is based on further technical considerations and solves the problem of providing a technically feasible implementation, in particular one that achieves an acceptable time complexity for query optimisation in relational database systems.

As a result, the Board remitted the application back to the examining division with the order to grant a patent based on auxiliary request IV.

More information

You can read the whole decision here: T 1965/11 (Cost-based materialised view selection/MICROSOFT TECHNOLOGY LICENSING) of 24.3.2017.

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Row-based selective auditing in an relational database system: technical

The European Patent Office considered row-based selective auditing in an relational database system technical. Here are the practical takeaways from the decision T 0963/09 (Selective auditing/ORACLE) of 5.6.2014 of Technical Board of Appeal 3.5.07:

Key takeaways

Database accesses in general and the specific implementation of row-based selective auditing in an relational database system, in particular, is considered technical.

The invention

The invention underlying the present decision relates to providing security in computerized databases. Databases oftentimes store highly sensitive data, such as salaries, corporate financial data, and even classified military secrets. For security reasons it is essential to be able to audit accesses to this sensitive data. Conventional database systems typically provide a general auditing facility that records an audit trail containing general information about the user and the query issued. However, conventional auditing facilities have a number of shortcomings. They do not record specific information about the application, the session environment or most importantly, the query results. Consequently, information gathered by a conventional auditing facility is frequently insufficient to reconstruct an event, or even to determine whether access rights have been violated (cf. WO 01/82118 A2, p. 1, l. 19-28). Hence, the application intends to provide an auditing mechanism that can specify a finer granularity of audit conditions during accesses to relational tables in order to minimize the number of false audit records that are generated (cf. WO 01/82118 A2, p. 2, l. 3-5).

Fig. 1 of WO 01/82118 A2

  • Claim 1 (main request)

Is it patentable?

The first instance examining division decided that the independent claims of the main request  lacked an inventive step in view of two cited prior art documents. Apart from the discussion of the prior art, the Board expressed some concerns in the summons whether the claimed subject-matter is technical at all:

7.6 In the communication accompanying the summons, the Board observed that auditing of database accesses, while in itself a technical operation, in the context of the present invention appeared not to serve any specific technical purpose going beyond the act of auditing. Similarly, the motivation for making auditing selective, i.e. limiting auditing of database accesses to accesses of rows satisfying a particular auditing condition, appeared to be non-technical.

During the oral hearing, the appellant argued against this (preliminary) view of the Board in charge:

7.8 At the oral proceedings, the appellant explained that the claimed invention allowed row-based selective auditing to be performed based on an auditing condition that referred to fields that were not included in the query result returned to the client.

Apparently, the Board followed this argument and considered the claimed subject-matter of the main request to involve an inventive step:

7.9 In view of this explanation the Board accepts that the claimed solution to the problem of implementing selective auditing cannot be regarded, without documentary evidence, as a mere obvious possibility.

Hence, at least implicitly, the Board in charge also considered the claimed subject-matter of the main request to be of technical nature and set the first instance decision aside.

More information

You can read the whole decision here: T 0963/09 (Selective auditing/ORACLE) of 5.6.2014.

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Performing prediction of seat availability in a travel planning system: technical

The European Patent Office considered performing prediction of seat availability in a travel planning system technical. Here are the practical takeaways from the decision T 0279/05 (Predicting availability/ITA) of 5.10.2007 of Technical Board of Appeal 3.5.01:

Key takeaways

Using a server to implement a prediction of airplane seat availability rather than a travel agent client may be considered technical.

The invention

The application underlying the present decision relates to a method for providing availability of airline seats and more particular to determining airline seat availability information for use in travel planning and travel reservation systems (cf. WO/46715, p. 1, l. 7-9). In more detail, the method provides a technique to substitute predictions of availability for actual availability responses. Availability predictions are based upon several conceptual types of models which can be used separately or in various combinations. These models include a predictor based upon a cache or a database of stored availability queries and answers to the availability queries. The queries are used to identify when a stored query is the same as a received query request, and the answers are used as a substitute for direct access for future identical or substantially
related queries (cf. WO/46715, p. 4, l. 13-24).

Fig. 1 of WO/46715

  • Claim 1 (main request)

Is it patentable?

The application was rejected by the first instance examining division due to lack of inventive step since the use of caching servers is well-known common knowledge. However, no evidence was provided:

6. The examining division argued that the solution was obvious in view of the well-known use of local caching servers relieving main servers from processing load, but gave no detailed arguments provided, nor any evidence of this. (…)

While not expressly stated in the decision, it appears that the examining division considered the claimed subject-matter as a pure implementation of a business process and thus did not perform a search.

During appeal, the applicant argued that the claimed subject-matter solves a technical problem:

1. The application relates to determining airline seat availability. As explained by the appellant (see point VII, above), the invention solves the problem of relieving processing load on the availability system caused by the large number of low-fare flight searches. It achieves this by providing a travel planning system server that stores previous flight availability search results in a database and uses this data to predict results of subsequent searches.

According to the Board in charge, the subject-matter as claimed refers to a mixed-type invention and thus ruled that the COMVIK approach has to be applied for assessing inventive step:

2. The invention involves a mixture of technical aspects, e.g. servers and databases, and not technical aspects, e.g. airline seat availability and yield management. Decision T 641/00 – Two identities/COMVIK (OJ EPO 2003, 352) sets out the approach to judge inventive step in such cases:

“This approach requires identification of the technical field of the invention (which will also be the field of expertise of the person skilled in the art to be considered for the purpose of assessing inventive step), the identification of the closest prior art in this field, the identification of the technical problem which can be regarded as solved in relation to this closest prior art, and then an assessment of whether or not the technical feature(s) which alone or together form the solution claimed, could be derived as a whole by the skilled person in that field in an obvious manner from the state of the art.

(…)

The Board further outlined that using the result of a prediction being performed in a server distinguishes the claimed process from any manual activity and is thus not a mere implementation of a known business activity, but involves technical considerations. Hence, there was no reason to refuse searching the claimed subject-matter during the examination phase:

6. (…) Regardless of whether the presently claimed prediction is distinguished from the caching operation, the Board judges that the distinguishing features at least go beyond what is “notorious”, or essentially irrefutable, in this art. In the Board’s view this removes the basis for not performing a search under Rule 45 EPC, so that an additional search should be performed (cf. T 690/06, points 2 and 8) to establish the relevant prior art by which to judge the inventive step.

Finally, the board ruled that the examining division’s reasoning for lack of inventive step is not convincing and the present application is remitted back to the first instance examining division for further search and examination.

More information

You can read the whole decision here: T 0279/05 (Predicting availability/ITA) of 5.10.2007.

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Database and means for building structured queries: technical

The European Patent Office considered a database and means for building structured queries technical. Here are the practical takeaways from the decision T 0862/05 (Sales system/CITIBANK) of 20.2.2008 of Technical Board of Appeal 3.5.01:

Key takeaways

Databases and means for building structured queries are (most likely) technical.

However, their combination does not necessarily comprise technical considerations.

The invention

According to the present decision, the underlying application relates to the following:

1. The invention concerns an electronic sales and service support system intended for banks. According to the explanations in the patent application (p. 2-7), marketing of financial services must be targeted to people who were inclined to make a change or open other accounts. To anticipate a customer’s needs and support targeted marketing, a service provider had to know its customers. In an effort to deal with a large customer database, businesses traditionally maintained customer records. The database must be assembled from diverse sources and information be retrieved from the central database in a meaningful and practical way. However, most bank employees never learned how to use complex query languages. Instead, developers wrote custom applications that were used by the bank employees having only a limited understanding of the program. Thus, an employee’s ability to use a database was often limited by the custom applications written by someone else. It was an object of the invention to provide an electronic sales and service support system that provided improved identification of sales targets using a centralized database.

Fig. 1 of WO 97/15023

  • Claim 1 (main request)

Is it patentable?

In light of the cited prior art, the responsible first instance examining division rejected the present application due to lack of inventive step:

II. The examining division held that the invention according to the main request and two auxiliary requests lacked an inventive step over an article by K. Morrall entitled “Database Marketing leaves marketing to the branches” published in Bank Marketing, November 1994, p.23-30, and common general knowledge (Article 56 EPC 1973).

The rejection was appealed by applicant. Then, as a first step, the Board in charge determined the technical features of the claimed subject-matter as follows:

2. The Board considers the technical features of claim 1 to be the following:

– a central database,

means for inputting data into the central database,

means for searching the database and identifying records,

workstations with or without a graphic user interface,

telecommunication links, and

means for building structured queries.

The appellant appeared to accept that these features were known in the art. However, their combination is allegedly not known, resulting in a quicker generation and distribution of sales leads:

2.1 The appellants do not deny that these features are known per se (cf also the description of the prior art as summarized above). They do however argue that the particular way the components are combined and interact was not known. It was a significant feature of claims 1 and 11 that electronic communication was used in the way specified by the claims. It resulted in a quicker generation and distribution of sales leads. The skilled person would not arrive at anything falling within the scope of claims 1 or 11.

In contrast, the Board in charge replied that the interactions are largely of commercial nature:

2.2 Looking closer at the interactions invoked by the appellants, the Board notes that these are largely of a commercial or organisational nature. Sales leads – ie specific information about (potential) customers – are generated by a so-called micromarketing centre. The only thing claim 1 says about this micromarketing centre is that it contains workstations. The workstations are connected to a database, but this is clearly necessary since sales leads must be generated from some kind of starting data. There is a central customer information system also linked to the database, but the function of this system is not further defined in the claim and thus has no specified bearing on the generation and distribution of sales leads.

Consequently, the effect achieved by the combination of the technical features is non-technical and must thus not be taken into account by the Board in charge for assessing inventive step:

2.5 Finally, the appellants have insisted that the skilled person would not have arrived at anything falling within the scope of the claims. This is however not always a relevant argument with respect to a claim containing non-technical features. It was held in decision T 273/02 – IC card/TOSHIBA (not published in the OJ EPO) that the “could/would approach” only applies if the “would” part involves technical considerations. This is another way of saying that the ingenuity of a claim’s non-technical features is of no relevance since only technical contributions may contribute to an inventive step. As for the claimed combination of technical features, the Board is convinced that the skilled person would indeed have arrived at it.

As a result, the Board concluded that the person skilled in the art would have arrived at the feature combination provided by the technical features and thus dismissed the appeal.

More information

You can read the whole decision here: T 0862/05 (Sales system/CITIBANK) of 20.2.2008.

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A central database for recording a status and an archive store for recording the status: technical

The European Patent Office considered a central database for recording a status and an archive store for recording the status technical. Here are the practical takeaways from the decision T 1242/04 (Provision of product-specific data/MAN) of 20.10.2006 of Technical Board of Appeal 3.5.01:

Key takeaways

Databases and archive stores are most likely technical means, whereas the stored data may have no direct technical effect.

Hence, when it comes to assessing inventive step, one has to carefully distinguish between databases and the data stored in it.

The invention

The application underlying the present decision relates to a method and system for providing product-specific data in a service station for detecting and possibly modifying construction and functional conditions of products supplied by a manufacturer. The object of the invention is to provide a process through which the functionality and quality of delivered products can be guaranteed throughout their entire life (cf. EP 1 320 055 A1, paras. [0002] and [0003]). The invention uses a central database to store equipment data for different products, with the equipment data being constantly updated by the manufacturer (cf. EP 1 320 055 A1, paras. [0018]).

Fig. 1 of EP 1 320 055 A1.

  • Claim 10 (main request)

Is it patentable?

The first instance examining division refused searching the claimed subject-matter because it allegedly lacks technical character:

II. (…) The claims relate to subject-matter which is excluded from patentability under Article 52(2) and (3) EPC. Given that they refer either only to such non-technical matter or to commonly known features for their technological implementation, the search examiner has been unable to identify any technical problem whose solution might possibly involve an inventive step. Hence it has not been possible to carry out a meaningful search into the state of the art (…).

Hence, applicant filed an appeal and was able to convince the Board in charge that the claimed subject-matter provides technical character:

3.1 The objection of lack of technical character in the subject-matter of the two independent claims 1 and 10 does not bear scrutiny in the light of the case law of the boards of appeal in T 931/95 (OJ EPO 2001, 441) and T 258/03 (OJ EPO 2004, 575).

3.2 Apart from the fact that, in keeping with T 931/95, even the apparatus category of claim 10 implies the presence of physical features and hence a technical character, both of the independent claims feature at least a central database for recording the required status and an archive store for recording the actual status which communicate with each other by computing means, which implies the use of a computer. Thus independent method claim 1 also uses technical means and in keeping with T 258/03 involves more than a purely abstract concept. Thus independent claims 1 and 10 both have a technical character and constitute inventions within the meaning of Article 52(1) EPC.

With respect to the assessment of inventive step, applicant defined the objective technical problem to be solved as follows:

4.1 The appellant has argued that the object of the invention is to guarantee the product’s functionality and quality throughout its lifetime, and that this constitutes a technical contribution.

However, the Board in charge disagreed:

4.1 (…) In the Board’s view, however, this object is not achieved by the subject-matter of claim 10. Higher functionality and quality throughout the product’s lifetime are not the consequence of the method or system of the invention; they are the consequence of using the best possible components. The stored data itself has no direct technical effect on product quality, this in fact being provided by the improved components themselves, to which the equipment data in the central database merely refers. Hence the guarantee of maintenance quality is also dependent upon the service personnel and is not automatic, which means that errors in maintenance continue to be possible.

4.2 Even if the object is simply held to be the provision of product-specific data so that the product’s required status can be compared with its actual status (see also col. 6, l. 26-28 of the A1 document: “This results in the automatic supply of updated product-specific data to the service station”), it is still essentially administrative in nature. What is definitely technical, though, is the realisation or implementation of this concept by technical means; and that must be held to constitute the technical problem in this case.

Therefore, the Board in charge applied the well-known COMVIK approach for assessing inventive step by only considering the technical features:

4.3 In assessing inventive step, only the features which contribute to the solution of the technical problem need to be taken into account (see T 641/00, OJ EPO 2003, 352). In independent claim 10 these are:

– a central database for storing and providing data

– an archive store for archiving data files retrievable via their assigned identification codes which comprise changes to the specific product in sequential data file versions

user interfaces assigned to service stations and connectable to the archive store by telecommunication for the retrieval of data files, and

– a computer-assisted program which communicates with the central database and the archive store in order to generate new and/or updated data files and store them in the archive store.

However, the Board considered these features to be general knowledge and are thus known in the art:

4.4 In the Board’s view, communication between the central database and the archive store is simply a form of client-server architecture, which was indisputably already part of the common general knowledge before the date of priority of the present application. The sequential data files in the archive store constitute an obvious implementation of a conventional maintenance manual in the form of an electronic database.

Hence, the Board considered the claimed subject-matter as being obvious to the skilled person.

More information

You can read the whole decision here: T 1242/04 (Provision of product-specific data/MAN) of 20.10.2006.

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Using a NoSQL data store and an RDBMS to provide performance improvement in a database system: technical

The European Patent Office considered using a NoSQL data store and an RDBMS to provide performance improvement in a database system technical. Here are the practical takeaways from the decision T 1924/17 (Data consistency management/ACCENTURE GLOBAL SERVICES) of 29.7.2019 of Technical Board of Appeal 3.5.07:

Key takeaways

Mathematical methods applied to solve a technical problem are patent eligible.

Particularly, improving response times for queries by automatically using different data stores, relational database management systems and NoSQL data stores, to manage data tables contributes to the technical character of an invention.

The invention

The application underlying the present decision relates to data consistency management and aims at achieving scaling using cloud computing for applications relying on a relational database as the data tier to provide transaction support and to ensure data consistency (EP 2 735 979 A2, para. [0001]). The purpose of the invention is explained by the Board in charge as follows:

2. (…) The invention proposes an automated approach for determining the trade-off between data consistency and scalability, thus accelerating the process of augmenting the data tier with NoSQL data stores for scalability in the cloud (paragraph [0027]). The invention monitors database queries issued by an application, and identifies data tables with query patterns that are most suitable to be managed by a NoSQL data store (paragraph [0027]). Based on a determination that a certain data table may be managed by a NoSQL data store, the  invention creates data structures in the NoSQL data store according to the data schema of the table, and translates SQL queries to the data table into corresponding NoSQL application programming interface calls (paragraph [0027]). For example, the invention may identify queries that select data from a single table using the primary key for this table. Such queries may be supported by key-value stores, which are NoSQL data stores, with high performance. As a further example, the invention may identify select queries aggregating a single column of a table. For such queries a column store may be suitable (paragraph [0047]).

A data table ranking module of the invention ranks data tables with a linear combination of the percentage of read queries and the percentage of query patterns suitable for a NoSQL data store (paragraph [0038]). A data table determination module automatically determines which data table can tolerate data inconsistency from the ranked data tables, and thus can be managed using a NoSQL data store (paragraph [0041]).

Fig. 1 of EP 2 735 979 A2

  • Claim 1 (main request)

Is it patentable?

In its decision to reject the application, the first instance examining division argued that only the following features of claim 1 of the main request are technical: a system, a data store, a database
management system, a memory and a processor. All other features would only constitute a number of abstract procedural steps in terms of a computer program as such. Consequently, only the above-listed technical features were considered by the examining division for assessing inventive step. As a result, the examining division decided that the claimed-subject-matter is rendered-obvious by the closest prior art document D1 because D1 discloses all of the technical features listed above. To substantiate this decision, the examining division outlined that features may only contribute to the technical character of an invention if they provide a “further” technical effect:

6. (…) The Division considered that features of a computer program may contribute to the technical character of the invention if they were capable of bringing about a “further” technical effect, when being executed, or involved “further” technical considerations. It referred to the Guidelines for Examination, G-II, 3.6. In the system according to claim 1, the effect of the procedural steps was to achieve different execution times and data consistency levels. These effects, however, were not “further” technical effects. Achieving data consistency levels was a “human requirement”, as there was “no technical reason for keeping data consistent versus partially or totally inconsistent”. Hence, data consistency was part of the requirements specification. Achieving different execution times was “an inherent side effect of the (any) different computer programming” and, therefore, “not sufficient on its own to qualify as a technical effect”.

Particularly features like “key-value store” and “column store” were considered as data structures which could not contribute to inventive step:

6. Features like “key-value store” and “column store” were “data structures” and, hence, merely static memory configurations not contributing to the technical character of the invention (see point 3.2 of the contested decision).

Importantly, the Board in charge did not agree with the examining division’s identification of technical and non-technical features in claim 1. With respect to the features of “key-value store” and “column store”, the Board pointed to paragraphs [0019] and [0032] of the application as filed in which such data stores are correctly described as systems:

9. (…) As correctly stated in the application, paragraphs [0019] and [0032], NoSQL data stores including keyvalue stores and column stores are non-relational database management systems. A database management system is not a data structure, but a software system for storing, retrieving and processing data which typically uses various data structures for the efficient management of data. Hence, these systems are not merely static memory configurations, they implement methods operating on the data and the data structures to query the data, for example. Thus, the reasoning of the contested decision is not convincing.

Moreover, the Examining Division identified database management systems as being technical, but considered the features specific for relational database management systems to be non-technical. As the technical function of a database management system is, at least to a substantial part, determined by the data model supported by the system (e.g. the relational model of data), the Board sees no reason why relational database management systems should be non-technical, if it is accepted that database management systems in general are technical. (…)

Notably, in order to assess the issue whether and to which extent claim 1 contributes to the solution of a technical problem, the Board in charge reviewed a plurality of decisions of the boards of appeal in the field of information systems. A first group of reviewed decisions concerns inventions related to accessing data in database management systems and, in particular, the processing of structured queries for this purpose, whereas a second group of decisions relates to the field of information retrieval. The decisions of both groups are briefly summarized in the following:

First group (accessing data base management systems):

11.1 In decision T 1242/04 (OJ EPO 2007, 421), the invention according to claim 10 related to a system for providing product-specific data in a service station. (…) Hence, this decision identified not only the central database for storing and providing data as a feature contributing to the solution of a technical problem (in combination with the other listed features), but also the computer program communicating with this central database and an archive store.

11.2 Decision T 279/05 of 5 October 2007 concerned an invention related to determining airline seat availability. The invention involved a mixture of technical aspects, e.g. servers, and non-technical aspects, e.g. airline seat availability and yield management. (…) As evident from the cited reasons, the competent Board considered database querying to be a technical field.

11.3 The invention in decision T 862/05 of 20 February 2008 related to an electronic sales and service support system intended for banks. (…) It follows that the competent Board regarded a central database, means for searching this database and means for building structured queries as technical features of the invention.

11.4 In decision T 658/06 of 25 November 2010, the invention concerned recording and managing bonus points for telephone users. (…) Hence, the competent Board considered database operations (…) as conferring a technical character on the claimed method.

11.5 The invention in decision T 1500/08 of 4 November 2011 related to the automatic generation of formally specified structured queries for a database management system based on the user input received. (…) The technical effect was that, sometimes, a previous search could be reused by the database server (see reasons 5.8 and 5.9). (…)

11.6 According to the background section of the patent application underlying decision T 963/09 of 5 June 2014, conventional database systems typically provided a general auditing facility that recorded an audit trail containing general information about the user and the query issued. (…) Evidently, the competent Board considered database accesses in general (see point 7.6 of the reasons) and the specific implementation of rowbased selective auditing in an RDBMS, in particular, to be technical.

11.7 In decision T 104/12 of 8 September 2016, the invention concerned a method of extracting data using a database view query from an online transaction processing system to a data sink. In point 3.8 of the reasons, the competent Board acknowledged that implementing the execution of a database view query was a technical problem.

11.8 Decision T 1965/11 of 24 March 2017 concerned the optimisation of structured queries to an RDBMS in the presence of materialised views. (…) This decision makes it clear that query optimisation in an RDBMS is considered as contributing to the technical character of the invention.

Second group (information retrieval):

12.1 Decision T 1569/05 of 26 June 2008 concerned an information retrieval system for retrieving images using textual descriptions of the images as searchable metadata. (…) Hence, the competent Board confirmed that retrieval from a database was normally considered as having technical character. However, it regarded the mathematical model of meaning used to define and calculate the similarity of images via their textual descriptions as non-technical.

12.2 In its decision T 1316/09 of 18 December 2012, point 2 of the reasons, the competent Board considered a method or a combination of methods of text classification per se as not producing any relevant technical effect or providing a technical solution to any technical problem.

12.3 In decision T 309/10 of 19 June 2013, the invention concerned the archival and retrieval of documents. The competent Board considered that the core method of retrieval could well be performed without the technical aid of a computer and by a librarian solving the non-technical problem of storing and locating books (see reasons 9 and 10). (…)

12.4 Decision T 598/14 of 6 November 2014 concerned a method for generating, from an input set of documents, a word replaceability matrix defining semantic similarity between words occurring in the input document set. (…) The Board is convinced that no such “further technical considerations” can be found in the present case. As explained above, the translation simply reflects the linguistic aspects in the mathematical model. (…)

12.5 Decision T 2230/10 of 3 July 2015 states in its reasons, point 3.10, the following: “The Board […] does not accept that the algorithm is based on technical considerations in that it has been purposively designed with a view to the relevance to the user of the search results obtained, as this relates to the cognitive content of the returned documents.”

Hence, this decision regarded certain considerations relating to the cognitive content of the documents as non-technical.

In view of the above-presented decisions, the Board in charge summarized the situation with respect to the technicality of query processing in database management systems and information retrieval systems as follows:

13. (…) Structured declarative queries, which are used for retrieving data managed in a relational database management system, normally have precise, formally defined semantics, i.e. the query precisely describes the data that is to be retrieved, and the database management system then retrieves the specified data set as a result. Relational database management systems typically execute such queries by determining an efficient query execution plan based on cost estimates for the necessary internal operations of the computer system (e.g. in terms of main memory accesses, hard disk accesses, central processing unit resources). Such database management systems are software platforms for the centralized control of data (“central database”). Features of these platforms often have a technical character, as they have been designed based on engineering considerations concerning the efficient exploitation of the computer system as a technical system.

Information retrieval systems typically have to formally calculate a semantic similarity of documents, which is typically regarded as involving non-technical considerations and being based on subjective criteria and the content (semantics) of the documents to be retrieved.

In view of the above, there is no contradiction in the case law relating to retrieval of data from database management systems and to information retrieval. Rather, the different judgments of the technical character of the features of these systems reflect the different kinds of considerations in the different fields.

As a result, the competent Board concluded that many aspects of processing structured queries in database management systems are to be regarded as technical. Hence, the subject-matter of claim 1 according to the main request of the underlying application adequately defines a system that solves a technical problem:

14. (…) In particular, improving the efficiency of executing structured queries to, or improving the throughput of, an RDBMS by automatically managing the data in various data stores with different properties and exploiting the different performance characteristics of these data stores for enhanced query processing solves a technical problem.

Interestingly, the competent Board further investigated what may have led the first instance examining division to wrong conclusions regarding the identification of the technical and non-technical features of claim 1. The Board of Appeal was particularly concerned that the linear combination “rank(t) = λ1 rp(t) + λ2 kp(t) + λ3 maxc(ap(t,c))” as claimed may have caused the examining division to regard individual features of claim 1 according to the main request as non-technical. In this respect, the Board in charge examined how Article 52(3) EPC has to be understood that defines that particularly computer programs are excluded from patent protection only “as such”. After a comprehensive discussion of this aspect, the Board concluded as follows:

19.3 (…) In the Board’s view, the context provided in Article 52(1) EPC, i.e. the limitation of inventions to all fields of technology, makes it clear that methods applying mathematics in a non-technical field are generally excluded from patentability (unless they use technical means, see decision T 258/03, EPO OJ 2004, 575, headnote I, according to which a method involving technical means is an invention within the meaning of Article 52(1) EPC). However, where mathematical features of an invention contribute to the solution of a technical problem, such mathematical features cannot be ignored when assessing inventive step. (…)

(…) Hence, the present wording of Article 52(2)(a) and (3) EPC, which excludes mathematical methods only “as such”, enshrines in the convention that mathematical methods applied to solve a technical problem are patent eligible.

In view of the above, the Board concluded that the features of claim 1 referring to the above-mentioned linear combination are based on technical considerations:

20.1 In the present case, as the mathematical features concerning the linear combination, E3a and E3b of claim 1, contribute to the automatic determination of which data tables are to be managed by which type of database management system, they play an essential role in the technical functioning of the system and consequently serve the overall technical purpose of claim 1. Furthermore, these features are based on technical considerations concerning the functioning of the database technology used. Hence, they contribute to the solution of a technical problem and have to be taken into account when assessing inventive step.

Since a speed comparison of the claimed method was made with respect to the system as disclosed by the closest prior art D1, the Board in charge also ruled that the claimed method provides a “further” technical effect:

21. The Examining Division had also argued that the effects of different execution times and data consistency levels achieved were not “further” technical effects (see decision T 1173/97, OJ EPO 1999, 609). (…)

21.1 (…) By contrast, in the present case, the speed comparison was made with respect to a particular prior art, i.e. document D1.

21.2 (…) Consequently, in the present case, it has to be considered whether an improvement in the processing speed is based on “further” technical considerations, i.e. technical considerations going beyond the abstract formulation of algorithms or beyond “merely” finding a computer algorithm to carry out some procedure (see opinion G 3/08, OJ EPO 2011, 10, points 13.5 and 13.5.1 of the reasons). (…) However, program development may involve technical considerations relating to the specific internal functioning of the computer as a technical system, which are then typically to be regarded as “further” technical considerations within the meaning of opinion G 3/08, reasons 13.5.1. (…)

21.5 The Board agrees with the appellant that the claimed system is based on “further” technical considerations that concern a specific manner of improving response times for queries by automatically using different data stores, relational database management systems and NoSQL data stores, to manage data tables. (…)

It follows that the Board does not share the Examining Division’s conclusion that achieving data consistency levels was a “result of human requirement” and independent of any technical necessity.

Finally, the board ruled that the examining division’s reasoning for lack of inventive step is not convincing and the present application is remitted back to the first instance examining division for further examination.

More information

You can read the whole decision here: T 1924/17 (Data consistency management/ACCENTURE GLOBAL SERVICES) of 29.7.2019.

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Self-controlling documentation for validated processes: non-technical

The European Patent Office considered a self-controlling documentation for validated processes non-technical. Here are the practical takeaways from the decision T 2315/16 (Validiertes Verfahren/IMC) of 5.7.2019 of Technical Board of Appeal 3.5.05:

Key takeaways

The automation of a method known in the art cannot contribute to inventive step. Importantly, a method also has to be considered as automated when some steps still have to be carried out a human.

The invention

The application underlying the present decision relates to monitoring of validated preparation processes. In more detail, In health care facilities, patients are allegedly repeatedly infected due to the use of contaminated medicine in their treatment. It is therefore necessary for such medicine to be reprocessed according to a validated reprocessing procedure before they are used with patients. However, especially when using complex processing agents, such as computer-controlled sterilizers or disinfection devices in combination with manual substeps, it is not possible for a user to carry out a complete review of all relevant process parameters, since the users of a documentation system for the validated reprocessing procedure are usually medical assistants, whose technical background is not sufficient for such an assessment. Hence, there is a need of a computer-implemented system for monitoring the reprocessing of medicine (cf. EP 2 685 396 A1, paras. [0002]-[0008]).

Fig. 1 of EP 2 685 396 A1

  • Translated claim 1 (main request)

Is it patentable?

During first instance prosecution, two different lines of argumentation were presented by the examining division why the claimed subject-matter would lack an inventive step:

1.1 The appealed decision contains two alternative objections under Article 56 EPC, the first of which describes the invention as pure automation of a business method by ordinary technical means. […]

1.2 The second objection is based on D1 as the closest prior art. The appealed decision regards the subject-matter of claim 1 of the main request as essentially the automation of a process known from D1 by means of a computer system. […]

Concerning the first line of argumentation, the Board in charge argued that the claimed invention is a system for monitoring the reprocessing of medicine in a validated process and therefore not a business method.

With respect to the second line of argumentation, wherein the claimed subject-matter would simply refer to an automation of a known process, the Board agreed and outlined:

1.3 According to the established case law of the Boards of Appeal, the mere automation of functions previously performed by humans is in line with the general trend in technology and is not considered inventive (see “Case law of the Boards of Appeal of the European Patent Office”, 8th edition, 2016, I.D.9.18.4).

Against this view the appellant argued as follows:

1.4 On the other hand, the appellant points out that in D1 the release is only carried out by one person and, in the case of pure automation, the release would therefore also have to take place automatically. However, an automation and the request from D1 for release by a person would be contradictory, because in the case of a fully automated release, the processing would take place according to a non-validated procedure. The appellant adds that the skilled person would already fail at the release step during automation. He would also try to automate the release by a human, but the automation of mental activities is not possible.

However, the Board in charge did not share this view and outlined:

1.5 The appellants view is clearly based on the assumption that a process is only automated if no human being is involved in any of its steps. However, this is not what the case-law and the Chamber understand by the term “automation”.

Hence, the Board confirmed the first instance decision that the claimed subject-matter lacks an inventive step and thus dismissed the appeal.

More information

You can read the whole decision here: T 2315/16 (Validiertes Verfahren/IMC) of 5.7.2019.

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Providing a confirmation element: non-technical

The European Patent Office considered providing a confirmation element non-technical. Here are the practical takeaways from the decision T 1139/16 (Bestätigungselement/KARL STORZ) of 9.4.2019 of Technical Board of Appeal 3.5.05:

Key takeaways

Providing a confirmation element independent of a concrete content of related information displayed to a user and independent of the subsequent cognitive processes or decisions of the user does not solve a technical problem and thus cannot contribute to inventive step.

The invention

The application underlying the present decision relates to a system for controlling and/or monitoring devices during medical interventions in which, on the one hand, access to generally valid device configurations and device parameters that have been identified as optimal in a large number of comparable interventions is possible, but, on the other hand, it is also ensured that the the medical doctor has taken positive note of these during each individual intervention. Hence, the objective of the application is to avoid that configurations of medical device are used by a medical doctor without having reviewed them (cf. EP 1 995 679 A1, paras. [0001]-[0009]). This problem is allegedly solved by providing a confirmation element that allows a confirmation of parameters used for the devices during a medical intervention.

Fig. 1 of EP 1 995 679 A1

  • Translated claim 1 (main request)

Is it patentable?

The application was rejected by the first instance examining division due to lack of novelty in light of document D1. However, the Board in charge came to the conclusion that D1 does not anticipate the claimed subject-matter. However, the board argued that the subject-matter as claimed according to the main request only differs from D1 in feature (g) which reads “a confirmation element (19) is provided, by the actuation of which the predetermined parameter values for the at least one device are taken over”. According to the appellant, this distinguishing feature solves the objective technical problem of enabling a higher level of safety in a medical intervention:

1.6 Consequently, only feature (g) is new to D1. The appellant states that the distinguishing feature (g) solves the objective technical problem of enabling a higher level of safety in a medical intervention. According to the description (see page 5, last paragraph to page 6, second paragraph), feature (g) forces the treating surgeon, for example by asking “Do you agree with the selected parameter values?”, to take note of the predetermined parameters before their adoption, to critically evaluate them and to account for the suitability of the predetermined parameters for performing the specific intervention before actuating the confirmation element.

However, the Board in charge did not follow this line of argumentation and outlined the following:

1.6 (…) In its preliminary opinion, the Board pointed out that an examination or a critical evaluation of parameters as such is not of a technical nature, but of a cognitive or possibly of a legal nature. The appellant’s line of argumentation that a conscious confirmation of the parameters to be adopted contributes to a higher safety of the medical intervention therefore merely constitutes a so-called “broken technical chain fallacy” (see T 1670/07, para. 11)

Against this view the appellant argued as follows:

1.6 (…) However, the appellant further stated that a confirmation element was undoubtedly a technical feature and that the provision of a higher level of security in accordance with the invention did not require the user to be aware of it at all, but was already brought about by the creation of the confirmation element as such.

However, the Board in charge did not share this view and outlined:

1.6 This argument does not convince the Board, since the mere creation of a confirmation element independent of the concrete content of the information displayed to the user and independent of the subsequent cognitive processes or decisions of the user cannot contribute to higher security in the event of a medical intervention. It follows that the provision of a confirmation element according to feature (g) does not solve an objective technical problem.

Hence, the Board ruled that distinguishing feature (g) is only of non-technical nature and thus cannot contribute to inventive step. Hence, the Board in charge dismissed the appeal.

More information

You can read the whole decision here: T 1139/16 (Bestätigungselement/KARL STORZ) of 9.4.2019.

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