Author Archive

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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Tracking SWAP derivatives transaction positions: non-technical

The European Patent Office considered tracking SWAP derivatives transaction positions non-technical. Here are the practical takeaways from the decision T 2491/12 (Tracking derivative positions / TRADEWEB) of 13.11.2018 of Technical Board of Appeal 3.5.01:

Key takeaways

The pure automation in the sense of making financial information available quickly is not considered technical by the EPO.

The invention

According to the application underlying the present decision, a derivative is a financial contract whose value is based on, or “derived” from, a traditional security (such as a stock or bond), an asset (such as a commodity), or a market index. A SWAP agreement is a type of derivative transaction where two streams of cash flows are exchanged. As such, it is allegedly unresolved in the art to provide a method that facilitates the unwinding and assignment of derivatives positions, but also allows counterparts to monitor such positions substantially in real time.

Fig. 1 of WO 2006/063352 A2
Fig. 1 of WO 2006/063352 A2
  • Claim 1 (main request)

Is it patentable?

During first instance prosecution, the appellant essentially argued that the contribution of the invention was a real-time operation:

VII. The appellant essentially argued that the contribution of the invention was a real-time operation (see point 1.2.3.4 of the statement setting out the grounds of appeal). The “configuration” of using a trading engine and a trade history database communicatively connected to each other and to counterpart computers enabled a real-time operation. The objective problem was therefore how to allow parties to monitor derivatives transactions in real time. Further details regarding the appellant’s arguments are dealt with in the reasons for the decision.

However, the examining division did not follow this line of argumentation and rejected the application due to lack of inventive step.

During appeal, the Board in charge outlined that the claimed subject-matter, despite the presence of non-technical features, is an invention in the sense of Article 52(1) EPC:

2.1 The claim is directed to a mix of technical and non-technical features. The Board does not dispute that the system according to claim 1 appears in a technical context. The system for monitoring derivatives transaction can be considered to be performed by technical means, because it involves a computer with means for storing data, means for processing data and means for transmitting and receiving data, and, therefore, has technical character. Accordingly, the claimed subject-matter is an invention in the sense of Article 52(1) EPC (see T 258/03 “Auction method/HITACHI“).

Then, the Board further argued that the COMVIK approach has to be used for assessing inventive step. Hence, it must be determined whether the invention povides a technical contribution:

2.2 However, the question of inventive step requires an assessment of whether the invention makes a technical contribution over the prior art. Features which do not make such a contribution cannot support the presence of an inventive step (see T 641/00 “Two identities/COMVIK“, Headnote I).

However, according to the Board’s findings, unwinding derivate transactions is only a business related administrative method and thus not technial:

2.3 In the Board’s view the unwinding of derivative transactions within the system for monitoring derivatives transactions pertains to a business related administrative method, i.e. to the non-technical part of claim 1.

More importantly, the Board in charge did not see the real-time aspect as argued by the appelant:

2.4 Furthermore, the Board does not consider that the “configuration” of using a trading engine and a trade history database communicatively connected to each other and to counterpart computers provide for a real-time operation as argued by the appellant (see point 1.2.3.4 of the statement setting out the grounds of appeal).

Moreover, the Board argued that the only technical features of claim 1 are those of a client-server system:

2.6 The only technical features of claim 1 which the Board can identify are those of a networked client-server system labeled with the underlying functions (trading engine, trade history database, counterpart computers etc.), which merely map the business related administrative concept of derivative transactions.

The Board therefore agreed with the decision under appeal that the closest prior art can be considered a general purpose networked computer system. Hence, the Board confirmed the first instance decision that the claimed subject-matter lacks an inventive step and thus dismissed the appeal:

2.7 […] The person skilled in the art within the meaning of Article 56 EPC, a computer expert provided with the complete description of the non-technical abstract administrative concept, would have considered the claimed implementation obvious in view of the normal skills and the general knowledge of computer programming.

2.8 Furthermore, the use of a centralised server system and the need for real-time operation were known in the art.

8.2 The claimed invention, in the Board’s view, is not directed to a real-time problem in the sense of improving a technical process, but rather to automation in the sense of making (non-technical) financial information available quickly. This automation is achieved by mapping the business related administrative concept of derivative transactions on a client-server computer system, which the Board regards as obvious for the reasons given above (see point 2).

More information

You can read the whole decision here: T 2491/12 (Tracking derivative positions / TRADEWEB) of 13.11.2018.

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Matching unit comprising two computer entities directly connected to a shared memory storing pre-calculated values: technical

The European Patent Office considered a matching unit comprising two computer entities directly connected to a shared memory storing pre-calculated values technical. Here are the practical takeaways from the decision T 1072/11 (Matching unit comprising two computer entities directly connected to a shared memory storing pre-calculated values/NASDAQ) of 18.6.2019 of Technical Board of Appeal 3.5.01:

Key takeaways

Using known computer processors and memory for special tasks may be considered as “non-notorious”. Thus, prior art has to be considered for assessing inventive step.

The invention

The invention underlying the present decision relates to an automated exchange system designed to execute matching of combinations of financial instruments. According to the application, in many electronic exchange systems today it is possible to trade so-called combination orders implying the trade of two or more contracts. Such a contract may be set up as a separate instrument. Oftentimes, the ratio between the elements to be sold and bought of such a contract cannot be expressed by natural numbers. In an automated exchange system, the bottleneck is the matching unit used for calculating the ratios which results in a very high workload on the underlying computer processor. That is the reason why presently no system performs such calculations. Hence, the goal of the application is to provide a system and method that is able to use formulas to derive the volume and/or price of a combination order to reduce the risk for the party entering such a transaction.

Fig. 1 of WO 03/105044 A2
Fig. 1 of WO 03/105044 A2
  • Claim 1 (main request)

Is it patentable?

The EPO’S first instance examining division rejected the present application due to lack of inventive step in view of D1 (US 6098051 A1), a publication introduced during the examination proceedings with the summons for oral proceedings before the first instance. However, the Board in charge does not agree to this assessment. At first, the Board outlined that the claimed subject-matter refers to a mixed-type invention and thus provides technical character:

2.1 The independent claims are directed to a mix of technical and non-technical features. The Board does not dispute that they appear in a technical context. Even the method can be considered to be performed by technical means, because it involves a first and second computer processor as well as a memory, i.e. means for processing and storing data and, therefore, has technical character. Accordingly, the claimed subject-matter is an invention in the sense of Article 52(1) EPC (see T 258/03 “Auction method/HITACHI“).

Then, the Board identified several differences over D1 and formulated a technical problem as follows:

2.5 D1 does not disclose the following features of claim 1:

– the second entity is located within the matching unit,

– a calculation of matching data values required in the matching process by the second computer entity,

– a shared memory directly connected to the second computer entity and- storing calculated matching data values calculated by the second computer entity in the shared memory.

2.6 The underlying objective technical problem is considered to be to implement the financial matching concept in a way which improves real-time and latency constraints in the matching unit.

Furthermore, according to the Board, it is not notorious to use known processors, co-processors as well as memory in the claimed way:

3. The Board is aware of computer processors comprising a coprocessor as well as first and second level cache memory, which have been used for special tasks already before the priority date of the present application, including improving processing power and dealing with real time constraints. However, the Board is not convinced that this has been notorious knowledge of the skilled person. Therefore a look into the prior art is necessary.

However, the Board outlines that it believes that a further prior art search is required before inventive step can be assessed and thus remitted that case back to the examining division:

3.3 Thus, present claim 1 cannot be definitively assessed for inventive step without knowledge of the relevant documented prior art. Thus, the main request requires a search for relevant prior art. Hence the matter must be remitted for an additional search and further examination.

4. According to Article 111(1) EPC the Board may exercise any power within the competence of the examining division (which was responsible for the decision under appeal) or remit the case to that department for further prosecution. It is thus at the Board’s discretion whether it examines and decides the case or whether it remits the case to the department of first instance. As it appears necessary for a further search to be carried out, the Board considers that in the present case remittal is the more appropriate course of action. […]

More information

You can read the whole decision here: T 1072/11 (Matching unit comprising two computer entities directly connected to a shared memory storing pre-calculated values/NASDAQ) of 18.6.2019.

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Generating a parallel computation graph: not technical

The European Patent Office considered several method steps for generating a parallel computation graph as not technical. Here are the practical takeaways from the decision T 1125/17 (Parallelizing computation graphs/AB INITIO) of April 2, 2019 of Technical Board of Appeal 3.5.06:

Key takeaways

The mere potential for a speed-up by parallelization of a computer program is not sufficient for arguing a “further” technical effect as a requirement for patentability of a computer program.

The invention

This patent application relates to computation graphs in which the vertices and the links define, respectively, “data processing elements” and the data flow between them. More specifically, the application relates to the transformation of “serial computation graphs” into “parallel computation graphs”. The application explains that it may be desirable to implement a computation graph using multiple instances of individual components. For example, each instance of a component may be hosted an a different processor, thereby achieving a coarse-grain parallelism that provides an overall increase in computation capacity.

Fig. 2B of WO 2005/001687 A2
  • Claim 1 (auxiliary request 5)

Is it patentable?

According to the applicant, it would be easier to parallelize a parallel computation graph as generated by the claimed method:

6. During the oral proceedings, in the context of auxiliary request 4, it was discussed whether the transformation of one computation graph into another, without an explicit mention of the deployment of parallel hardware or the execution on parallel hardware, would have to be accepted as a technical effect on the assumption that the generated computation graph was established as lending itself more easily to parallelization than the given one. Although this question turned out not to be decisive for the case at hand, the appellant encouraged the board to comment on this question in its decision.

In response, the Board in charge explained that it is of the opinion that the generated parallel computation graph is actually not easier to parallelize than a given user-specified graph. Moreover, the Board argued that an accelerated execution of a parallel program would not only dependent on the program itself, but also on the computer platform on which it is executed. In other words, when a program is executed on a single-core architecture, no speed-up may occur, whereas an acceleration may be achieved when the same program is executed on a multi-core platform:

6.3 Even a program written in a programming language with parallelization instructions or with some express potential for parallel execution such as array processing may be executed on parallel hardware or not. Such a program can also be executed on a single-core processor. In this case, a speed-up by parallelization is not achieved. In many cases, a parallel program could be expected to execute more slowly on the single core than an equivalent serial program since any parallelization overhead is not compensated by the speed-up of parallel computation. This is to say that the speed-up of parallelization is not achieved by the form of the parallel program alone and not before the program is actually deployed and executed on parallel hardware.

Since the effect of an accelerated execution is only achieved on a specific execution platform, the effect of a speed-up could not be attributed to the program alone. Hence, to argue the technical effect of an accelerated execution, the execution platform would have to be included in the claim, which is not the case here:

6.5 This board takes the view that T 1173/97 meant to make this statement only if the mentioned further technical effect was produced whenever the program was run, i.e. on any suitable hardware or runtime environment. For if that effect was produced on a particular execution platform but not on another, the effect could not be attributed to the program itself – unless maybe there was an argument to the effect that the required execution platform was implicit in the program claim. In all other situations, it would seem that the execution platform required to achieve the effect would have to be claimed as an essential feature.

6.6 This would appear to mean that if, as in the present case, an inventive-step argument is to rely upon a speed-up by parallelization, a parallel execution platform must be claimed. Consequently, the mere potential for a speed-up by parallelization would not seem to be sufficient as a “further” technical effect because this effect is not achieved irrespective of how the program is executed.

As a result, the Board dismissed the appeal.

More information

You can read the whole decision here: T 1125/17 (Parallelizing computation graphs/AB INITIO) of April 2, 2019.

Determining a reference reading from a load cell of a cash till: technical

The European Patent Office considered a method for determining a reference reading from a load cell of a cash till as technical and remitted the case back to the examining division. Here are the practical takeaways from the decision T 1823/15 of 19.2.2019 of Technical Board of Appeal 3.5.03:

Key takeaways

In light of T 1227/05, a computer-implemented method may have a technical character provided that the method is functionally limited to a technical purpose

The invention

This patent application relates to reading data from a load cell of a cash till and monitoring cash till transactions. According to the applicant, it is advantageous in that it stores a reading as a verified value if that reading is within a predetermined amount of the subsequent reading, e.g. when the amount of jitter in the output of the load cell between readings is below a predetermined amount. The verified “good” reading can then be used to determine the weight on the load cell. However, a “bad” reading that is different from the subsequent reading by more than a predetermined amount, for example due to excessive jitter in the output of the load cell, will not be stored and consequently will not be used to determine the weight on the load cell.

Fig. 2 of WO 2012/045993 A1
  • Claim 1 (original main request)

Is it patentable?

According to the Board, a difference over the cited prior art resides in the algorithm or mathematical method used to arrive at the final result (or “reference value”) as claimed. However, the examining division considered this feature to be non-technical:

2.7 The Examining Division decided that this mathematical algorithm was a non-technical feature (Reasons, point 2.3.1.3), hence it based its analysis on Guidelines G-VII, 5.4, which concerns claims comprising technical and non-technical features (the reference in the contested decision to “G-VII §5.2” appears to be an error; the relevant section is G-VII, 5.4, both in the version of the Guidelines in force at the time of the decision and currently).

Applying the approach set out in this section of the Guidelines, the Examining Division decided that the claim referred to an aim to be achieved in a non-technical field, which might legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met. The Examining Division therefore formulated the problem as “adapting the predetermined rule of the reading method of D9 to another predefined rule”. The problem was therefore seen as merely implementing the claimed algorithm, and it was considered that this would be easily achievable by the skilled person (Reasons, points 2.3.1.4 and 2.3.1.5).

In contrast to the assessment of the examining division, particularly by referring to the principles established in T 1227/05, the Board came to the conclusion that the method defined by claim 1 of the main request relates to the technical purpose of weighing (and thereby counting) physical objects (notes and coins). The Board judges that this technical purpose is adequately defined:

2.12 In T 1227/05, by contrast, the claim related to a computer-implemented method for the numerical simulation of an electrical circuit which is subject to 1/f noise. In this case, the Board found 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.” (Reasons, point 3.1; all quotations are from the English translation of T 1227/05 appearing in OJ, 2007, 574.)

Since the claims were found to be adequately functionally limited in this sense, the Board concluded as follows:

“all steps relevant to circuit simulation – and that includes the mathematically expressed claim features – contribute to the technical character of the simulation method according to claim 1 or 2.” (Reasons, point 3.2.4.)

Hence, in assessing whether the claimed simulation methods involved an inventive step, all features which contributed to the technical character of the method were to be taken into account, including the mathematically defined steps (Reasons, point 4).

2.13 The method defined by claim 1 relates to the technical purpose of weighing (and thereby counting) physical objects (notes and coins), and Board judges that this technical purpose is adequately defined (in the sense referred to in T 1227/05) in claim 1 as “determining a reference reading from a load cell (6) of a cash till”, the “reference reading” being the value derived by the defined method from a successive series of readings from the load cell.

2.14 Since the claimed algorithm serves a technical purpose, it must be regarded as a technical feature, and the claimed subject-matter therefore comprises technical features only, and not a mixture of technical and non-technical features. The approach adopted by the Examining Division is therefore inapplicable.

Since the question whether the claimed subject-matter including the features expressed algorithmically is obvious to the skilled person in light of the cited prior has not been addressed by the Examining Division, and to allow the appellant the possibility – if necessary – to have this matter examined before two instances, the Board considers it appropriate to exercise its discretion under Article 111(1) EPC to remit the case to the department of first instance for further prosecution.

More information

You can read the whole decision here: T 1823/15 of February 19, 2019

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