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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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Designing an optical system with certain mathematical properties: technical

The European Patent Office granted a software patent on a method for designing an optical system that satisfies a certain algebraic condition. Here are the practical takeaways of the decision T 0471/05 of 6.2.2007 of Technical Board of Appeal 3.4.02:

Key takeaways

The criteria for technical character presupposes that the claimed subject-matter relates to a physical entity or a physical activity.

The invention

This European patent application relates to the activity of designing an optical system. This is done such that substantially all light rays imaged by the optical system between two predetermined points on the optical axis of the system satisfy an algebraic condition specified in the patent claim.

Fig. 1 of EP 0 932 845
Fig. 1 of EP 0 932 845

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (main request)

Is it technical?

Since claim 1 concerned a method for designing an optical system essentially such that a mathematical formula is satisfied, the question at hand was whether the claimed subject-matter is excluded from patentability per se. In this respect, the board noted:

Thus, the claim merely formulates a series of mathematical and optical abstract concepts without properly requiring a physical, technical implementation. In particular, neither the claimed design method nor the resulting “design” requires a technical activity or a technical entity – let alone a “physical” activity or entity within the meaning of decision T 453/91 (point 5.2 of the reasons). It follows that the subject-matter for which protection is sought (Article 84 EPC, first sentence) is the mere “design” of an optical system and encompasses purely abstract and conceptual implementations excluded from patent protection pursuant to Articles 52(1), (2) and (3) EPC. More particularly, the claimed method can be carried out as a purely mental act or as a purely mathematical design algorithm and, consequently, encompasses embodiments falling within the category of methods for performing mental acts as such and within the category of mathematical methods as such both expressly excluded from patent protection under Article 52(2)(a) and (c) in conjunction with Article 52(3) EPC.

The appellant argued that the claimed method defines an activity that requires the use of technical means, involves technical considerations, results in an optical system design and produces technical information in the form of the specifications of an optical system having predetermined technical characteristics, and pertains to the technical field of optical design. However, this did not convice the board:

However, this line of argument does not persuade the Board. The criteria for technical character of a claimed invention discussed in decision T 619/02 implicitly presuppose that the claimed subject-matter defining the matter for which protection is sought relates to a physical entity or a physical activity (see for instance point 2.1, first paragraph, and points 2.3.1, 2.4.1 of the decision). It cannot be denied that the method defined in claim 1 of the main request can be carried out using some physical means (e.g. a block of optical material to be gradually shaped into an optical system so as to satisfy the algebraic condition specified in the claim), or using some technical means (e.g. a computer to determine the optical specifications of the optical system design), or in the form of a physical activity that results in a physical entity (e.g. when the claimed step of “making a design of the optical system” is implemented by the manufacture of the design as actually claimed in claim 5), and that such implementations of the claimed method constitute physical, technical activities not excluded from patent protection (see for instance decisions T 914/02, point 2.3.3 of the reasons, and T 258/03, OJ EPO 2004, 575, point 4.7). Nonetheless, contrary to the appellant’s contention, the claimed method does not require the use of technical means and, as noted above, the method is not restricted to physical, technical implementations, and the fact that the claimed method encompasses non-excluded implementations such as those mentioned above does not overcome the fact that the claimed method also encompasses excluded subject-matter (T 914/02, points 2 and 3, and T 388/04, OJ EPO 2007, 16, point 3 of the reasons; see also T 453/91, point 5.2, and T 930/05, points 3.1 and 4.5). Thus, as long as the claimed design method is not confined to physical, technical implementations, the claimed subject-matter encompasses embodiments excluded from patentability under Articles 52(1) to 52(3) EPC and is not entitled to patent protection under the EPC.

Therefore, the board concluded that claim 1 of the main request is excluded from patent protection under Articles 52(1), (2) and (3) EPC.

In a second auxiliary request, the appellant added that the claimed method is carried out “using an optics design program”. This claim version overcame the exclusion:

Thus, claim 1 of the second auxiliary request defines an activity in which the design conditions defined in the claim are input into an optics design program to determine the design parameters of optical systems satisfying the design conditions expressed in the claim. In addition, the determination by the optics design program of the resulting design specifications requires implicitly that the optics design program is run in some form of hardware such as a computer. It follows that the claimed method defines an activity involving inherently and necessarily the use of such hardware fed with the optics design program and the claimed design conditions, i.e. defines a physical, technical activity.

By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the “two hurdle” approach with lots of examples:

Regarding inventive step, the board was apparently satisfied that the claimed subject-matter, including the mathematical formula, defines technical subject-matter, since it examined in detail whether these features were rendered obvious by the prior art at hand:

The Board, however, cannot follow the conclusion drawn by the examining division. First, the line of argument of the examining division relies on a parameter q algebraically interpolating between the Abbe and the Herschel conditions, i.e. relies on hindsight knowledge of the specific algebraic condition defined in the claimed invention and therefore on an ex post facto analysis. Second, even assuming that the skilled person would have considered the possibility of obtaining a compromise between the two antagonistic conditions different from that proposed in document D1, the Board notes that there is an infinite number of ways of reaching a compromise between the two conditions. In particular, there is an infinite number of mathematical functions interpolating between the two algebraic conditions [1] and [2]; even restricting such interpolating functions to parametric functions, there is an infinite number of such interpolating parametric functions, the one-parameter algebraic interpolations given by the appellant in the statement of grounds of appeal (see point V above) constituting just some examples. In fact, there are even infinite ways of compromising the two conditions with the algebraic function defined in the claim when – contrary to the requirements of the claimed design – the condition is only satisfied by some light rays, or by substantially all light rays but with different values of the parameter q.

In addition, the algebraic condition defined in the claimed invention does not constitute an arbitrary selection of just one from among infinite possibilities of mathematically interpolating between conditions [1] and [2], but, according to the disclosure of the invention, the claimed condition constitutes the selection of a specific mathematical interpolation that guarantees the achievement of an advantageous balance between field size and axial excursion (page 3, lines 15 to 25), thus allowing for a relatively large volume in image space where aberrations stay relatively low (pages 9 to 12 of the application).

In view of the above, neither the available prior art nor the general common knowledge in this field suggest the design requirements defined in claim 1 and the technical improvements achieved therewith.

Therefore, the Board decided that claim 1 of the second auxiliary request involves an inventive step.

More information

You can read the whole decision here: T 0471/05 of 6.2.2007

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Improving information display on a display device of an aircraft: technical

The European Patent Office granted a software patent on a method of representing missed approach information in perspective view on a cockpit display. Here are the practical takeaways of the decision T 0013/18 of 12.4.2019 of Technical Board of Appeal 3.2.01:

Key takeaways

Enabling a pilot to abort a landing in due time if necessary, thereby improving safety: technical

The invention

This European patent application relates to a method for displaying information on a display device of an aircraft. The method comprises determining graphics data for visual aids that represent
missed approach data, incorporating the graphics data into a user interface that is in perspective view, and generating the user interface for display on the display device of the aircraft.

Fig. 3A of EP 2 664 549
Fig. 3A of EP 2 664 549

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (main request)

Is it technical?

The Board found that claim 1 differs from the closest prior art by the step of “determining, by a distance determination module (24), using the approach data (30) based on real-time flight data or prescribed flight data at least one of a time and a distance from the touchdown point where the decision height or the minimum descent altitude would be achieved” (feature c).

According to the Board, this difference solves the following technical problem:

Determining at least the time or distance from the touchdown point where the decision height or the minimum descent altitude would be achieved will enable the pilot to abort the landing in due time if necessary.

The problem to be solved may be regarded as to increase safety landing.

In view of the prior art at hand, there was no hint for the skilled person to come up with the claimed solution:

D1 (col.8, l.33-45, figure 4) discloses the following: “If the aircraft drops below a predetermined altitude, a shadow 63 of the predictor 31 becomes visible on the screen. The shadow 63 gives the pilot information as to the altitude and the predicted altitude without it being necessary to concentrate on another instrument. In connection with the change in the color of the symbols of the predictor 31 in the region of the lower permissible speed, the pilot can at a glance gather all necessary information shortly prior to touchdown”. The information displayed in D1 enables the pilot to correct the landing.

Thus D1 deals with another problem than the one in the present application. It does not enable the pilot to visualise the decision height or the minimum descent altitude to enable him to take a decision on aborting the landing of the plane. Furthermore there is no incentive for the skilled person to change the information displayed in D1 and to determine the time or distance from touchdown where the decision height or the minimum descent altitude would be achieved.

Therefore, the subject-matter of claim 1 was found to involve an inventive step.

More information

You can read the whole decision here: T 0013/18 of 12.4.2019

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Displaying user interfaces more quickly by precomputing information: technical

In this decision, the European Patent Office acknowledged that precomputing user habit information for a graphical user interface of a mobile device is technical. However, this difference over the prior art was found to be obvious. Here are the practical takeaways of the decision T 1718/17 (User habit list/HUAWEI) of 29.4.2019 of Technical Board of Appeal 3.5.06:

Key takeaways

Maintaining information as sub-tables rather than generating the tabular information as needed has the advantage that the display interface can be generated more quickly when actually needed, but the disadvantage that the sub-tables must be precomputed and kept in memory.

In the art of computing, “precomputation” is a well known method of speeding up program execution.

The invention

This European patent application relates to the problem of simplifying the use of complex user interfaces, e.g. in smartphones.

The invention proposes to track users’ interactions with their devices to determine their “habits” and thus to predict what they might want to do next. A number of likely user preferences (“user habit options”) are compiled from actual user operations and displayed as a “user habit list” from which the user can select. The list is ordered according to priorities that aim to express user preferences well. The parameters being tracked (and taken into account to arrange the user habit list) relate to applications and their options, the frequency of calls, the time of day, and the like.

Fig. 4 of the application illustrates an example of a user habit list:

Fig. 4 of EP 2 888 664
Fig. 4 of EP 2 888 664

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (main request)

Is it technical?

The Board of Appeal identified the following difference between claim 1 and the closest prior art: Instead of maintaining a single user habit list as in the prior art, claim 1 referred to at least two “user habit statistical sub-tables” which reflect the user habits for “different time span[s] of a day”.

On the one hand, the Board took the view that the multiple statistical sub-tables indeed provide a technical effect. Doing so, however, was found to be obvious:

In the application to hand, the “sub-tables” are disclosed in embodiments 4 and 6 (see the original description, page 17, line 9, to page 19, line 7, and page 20, line 9, to page 22, line 16). Apart from no­ting that different sub-tables can model time-dependent user habits (see page 17, lines 16 to 29) – which is known from documents D3, D5 and D7 – the description does not disclose any specific technical effect of using the claimed subtables for the implementation of that model.

The board can only speculate that maintaining the pertinent information as “sub-tables” rather than (re-)generating the tabular information as needed has the advantage that the display interface can be generated more quickly when actually needed, but the disadvantage that the sub-tables must be precomputed and kept in memory. From this perspective, precomputing sub-tables would have been obvious to the skilled person to achieve the effect known from document D3 as a matter of the well-known trade-off of “precomputing”, namely between time and space requirements on the one hand and system responsiveness on the other.

The board takes the view that, in the art of computing, “precomputation” is a well known method of speeding up program execution. The basic idea is to avoid the time-consuming computation of certain data when it may be needed urgently, by computing it – or part of it – earlier. This speeds-up access to the data when needed and may, thereby, increase system responsiveness. This advantage comes at a cost, in that the precomputed data has to be stored until needed and thus increases the program’s memory consumption.

Therefore, the Board decided that claim 1 does not involve an inventive step and dismissed the appeal.

More information

You can read the whole decision here: T 1718/17 (User habit list/HUAWEI) of 29.4.2019

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EUROPEAN SOFTWARE PATENTS May 2019 updates

May came with seven new decisions in the EUROPEAN SOFTWARE PATENTS knowledge base relating to graphical user interfaces, navigation systems, computer games, business methods, video processing, programming and cryptography:

Patents for graphical user interfaces

Improvements in graphical user interfaces are sometimes difficult to protect with patents when they are closely related to the presentation of information (which is as such excluded from patentability).

In one case, however, the Board of Appeal decided that displaying a 3D bird’s eye view map, e.g. in a car navigation system, and the associated calculation steps are technical and thus enter into the inventive step assessment. An important finding was that displaying information in an ergonomically improved manner is indeed a technical purpose.

In another decision relating to GUIs in video games, the European Patent Office granted a software patent on graphical layout aspects of a video game which improved its functional quality. One of the aspects of the invention related to making a possibly concealed indicator clearly visible on a display screen to the user of an interactive video game.

As a negative example in the realm of navigation systems, the European Patent Office refused to grant a patent for a navigation system that can be tailored to a user’s particular wishes.

Business method patents

In one recent decision, the Board of Appeal 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. The Board emphasized the basic principle that a computer-implemented method may have a technical character provided that the method is functionally limited to a technical purpose.

By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the “two hurdle” approach with lots of examples.

Patents for audio / video / image processing

Just recently, the European Patent Office granted a software patent on improving the recognition of songs or background music in a video by using closed-captioning data for determining an audio segment that is relatively free of interference. The Board held that improving the recognition of songs or background music is a technical problem.

Programming

The act of programming in itself is regularly regarded to be a mental activity devoid of technical character. In this decision, several method steps for generating a parallel computation graph were found to be non-technical, since the mere potential for a speed-up by parallelization of a computer program is not sufficient for arguing a “further” technical effect.

Cryptography

Although normally based on mathematical concepts, inventions in the field of applied cryptography are regularly allowed by the European Patent Office. For example, in this case the Board of Appeal considered a mathematical method of masking a private key technical. More precisely, the Board decided that protecting a cryptographic computation against power attacks is a technical problem if, and only if, the computation is actually carried out on hardware and thus open to such attacks.

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Masking a private key: technical

The European Patent Office considered a mathematical method of masking a private key technical. Here are the practical takeaways from the decision T 0556/14 (Masking a private key/CERTICOM) of 28.7.2016 of Technical Board of Appeal 3.5.06:

Key takeaways

Protecting a cryptographic computation against power attacks is considered a technical problem if, and only if, the computation is actually carried out on hardware and thus open to such attacks.

The invention

The invention underlying the present decision relates to a method for masking a private key used in cryptographic operations on a security to­ken, such as a smartcard. The security of cryptographic systems relies on a particular piece of information being kept secret. One way to retrieve information about the secret is to apply power analysis attacks to extract information about the secret by statistically analysing the power consumption of the security token when carrying out the cryptographic operation. To avoid such attacks, masking is used, which is a technique of randomising the calculations carried out in each instance of a cryptographic algorithms, so that the result remains the same but no relevant statistical information about the key can be gathered.

Fig. 5 of EP 1,365,308 A2

  • Claim 1 (main request)

Is it patentable?

After grant, in response to an opposition, the European patent No. 03 018 048.3 was fully revoked. The patent proprietor appealed this decision. Besides several other ground of opposition and of its own volition, the board in charge raised the issue of whether a “method of masking” constituted a mere mathematical method and was hence excluded “as such” from patentability under Article 52 EPC.

However, since claim 1 explicitly refers to a smart card, the board in charge outlined that the claimed subject-matter cannot be considered excluded from patent protection as such:

10. Due to the express reference in claim 1 to a smart card on which the key parts and also the new parts are stored, the claimed method of masking is not a mathematical method as such which can be objected to under Article 100(a) EPC 1973 for lack of compliance with Article 52(2) and (3) EPC.

Moreover, in this specific case, the Board expresses that protecting a cryptographic operation also solves a technical problem.

13.3 The board accepts as a technical problem the protection of a cryptographic computation against power analysis attacks – if, and only if, the computation is actually carried out on hardware and thus open to such attacks.

13.4 The board also accepts that claim 1 specifies a masking method carried out on hardware. Even though claim 1 literally specifies only the storage of the key parts on a smart card, in the board’s view the skilled person can only understand the method of claim 1 as a fully computer-implemented method.

14. The board therefore takes the position that the claimed randomisation steps, namely the calculation of two randomised key parts and the computation of Q = b1P + b2P instead of Q = dP, does achieve some protection against power analysis attacks and thus have a technical effect.

Hence, the board finally accepted that the claimed method is technical and provides an inventive step. Consequently, the board decided to set the decision of the first instance opposition aside and to remit the case back to the opposition division with the order to maintain the European patent.

More information

You can read the whole decision here: T 0556/14 (Masking a private key/CERTICOM) of 28.7.2016.

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.

Navigation systems that can be tailored to a user’s particular wishes: non-technical

The European Patent Office refused to grant a patent for a navigation system that can be tailored to a user’s particular wishes. Here are the practical takeaways from the decision T 2035/11 (Navigation system/BEACON NAVIGATION) of 25.7.2014 of Technical Board of Appeal 3.5.07:

Key takeaways

Mathematical algorithms may contribute to the technical character of an invention only in so far as they serve a technical purpose.

The mere fact that the input to an algorithm has a particular meaning in the real-world is insufficient for the algorithm to make a technical contribution.

The invention

The focus of the present application is on the route-planning functionality of a navigation system. Such a navigation system can either be installed in a vehicle or located in a personal computer. The navigation system comprises a database of road segments, a system for selecting a beginning point, a user input device for selecting a desired destination, and a system for determining a route between said beginning point and said desired destination.

The invention essentially proposes an optimization algorithm to determine a path (consisting of a series of graph edges) connecting a first graph node to a second graph node and having the lowest total cost.

Fig. 3 of EP 1 018 081
Fig. 3 of EP 1 018 081

  • Claim 1 (main request)

Is it patentable?

The Board considered that the optimization algorithm of claim 1 does not serve a technical purpose and therefore does not make a technical contribution:

5.1.3 … In the present case the purpose of the algorithm is the mere display of an optimal path to the user for cognitive processing. The user may act on the information, but does not need to. As stated in decision T 1670/07 of 11 July 2013, reasons 13, a technical effect may arise from either the provision of data about a technical process, regardless of the presence of the user or its subsequent use, or from the provision of data (including data that on its own is excluded, e.g. produced by means of an algorithm) that is applied directly in a technical process. In the present case the data is produced by means of an algorithm and is not applied directly in a technical process, so that neither possibility applies.

In contrast, the applicant (in this case the appellant) argued that the algorithm was concerned with real-world facts. The costs associated with road segments reflected technical and geographical conditions and specifics to the topographical information which were to be considered when determining the route.

However, the Board stated:

5.1.4 … the present invention is not concerned with the specifics of the constitution of road maps and corresponding databases. The database of road segments of claim 1 is essentially a graph comprising nodes and edges with cost values assigned to the edges. Calculating a route having the lowest total cost does not require knowledge of environmental conditions or traffic routing and planning. The database of road segments serving as input to the algorithm may reflect real-world facts, but the mere fact that the input to an algorithm has a particular meaning in the real-world is insufficient for the algorithm to make a technical contribution (see e.g. decision T 154/04, OJ EPO 2008, 46, reasons 20).

After further unsuccessful arguments by the appellant, the Board finally decided that claim 1 of the main request is not patentable.

In auxiliary request 1, additional features relating to a “congestion level” were added, which is claimed as a “cost”. The Board assessed that auxiliary request 1 has the potential of an inventive step and therefore remitted the case back to the department of first instance (the Examining Devision) for further prosecution. However, this application was finally refused by the Examining Devision because of lacking an inventive step.

More information

You can read the whole decision here: T 2035/11 (Navigation system/BEACON NAVIGATION) of 25.7.2014.

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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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Improving functional quality of the graphical layout of a video game: technical

This decision is a classic one concerning two items on the list of excluded subject-matter: gaming rules and the presentation of information. The European Patent Office granted a software patent on graphical layout aspects of a video game which improved its functional quality. Here are the practical takeaways of the decision T 0928/03 (Video game/KONAMI) of 2.6.2006 of Technical Board of Appeal 3.5.01:

https://www.youtube.com/watch?v=smG1ejC_QzE

Key takeaways

Making a possibly concealed indicator clearly visible on a display screen to the user of an interactive video game does not exclusively address a human mental process (i.e. it is not exclusively determined by the cognitive meaning of the information presented) but contributes an objective technical function to the display.

Highlighting of a second point of interest, in addition to the active player character, on the display screen in order to draw the user’s attention to the second point on the screen is a technical contribution to be considered in the inventive step discussion.

The invention

This European patent application relates to an interactive video game (e.g. a virtual soccer game) in which a user controls at least one player character displayed on a screen.

One aspect of the invention is to display a ring-shaped guide mark (see G1 in the image below) around the foot of the active player character. Further, a team mate of the active player is accompanied by a pass guide mark (G3) so that the active player character can easily pass the ball to the team mate. A central aspect was that the pass guide mark is displayed on the end of the display area even when the other player character and the pass guide mark come out of the display area of the monitor screen so as to properly indicate the direction in which the ball is to be passed by the player character.

Fig. 6 of EP 0 844 580
Fig. 6 of EP 0 844 580

Here is how the invention is defined in claim 1:

  • Claim 1

Is it technical?

First of all, patent-eligibility was not an issue in the present case in accordance with the established case law:

Eligibility for patent protection has not been called into question by the Examining Division. The guide display device according to claim 1 indeed represents a physical entity in particular comprising displaying means which have a technical character by their nature.

The displaying steps of the independent method claim imply the use of displaying means which provides a technical character to the method (T 258/03-Auction method/HITACHI, OJ EPO 2004, 575).

Concerning inventive step, one difference over the closest prior, which indicates the active player character by displaying a small triangle above its head, was that the guide mark is ring-shaped and displayed around a foot of the active player character. The Board assessed the technical character of this difference as follows:

The aforementioned difference implies an enlarged size of the guide mark which avoids any risk of the mark being concealed by a neighbouring player character. Making a possibly concealed indicator clearly visible on a display screen to the user of an interactive video game does not exclusively address a human mental process (i.e. it is not exclusively determined by the cognitive meaning of the information presented) but contributes an objective technical function to the display. The functional quality is not cancelled by the fact that the visualised information will also enter into a decision of the user interacting with the video game displayed on the screen.

In conclusion, the enlarged size of the guide mark will enter into the appraisal of the display device and method with respect to inventive step (T 641/00-Two identities/COMVIK, Headnote I, OJ EPO 2003, 352).

However, the Board ruled differently with respect to the ring shape of the guide mark and its arrangement near the foot of the player character:

On the other hand, the Board is not convinced that the precise geometrical (ring-)shape of the guide mark achieves any effect other than an aesthetic impression. The shape of the guide mark relates to mere artwork in the menu design which the Board considers as non-technical (see T 244/00-Remote control/MATSUSHITA, point 12 of the Reasons).

Consequently, the ring-shape of the guide mark is merely an aesthetic creation and, thus, cannot constitute an inventive step within the meaning of Article 56 EPC.

The same goes for the precise (foot-related) location of the guide mark (G1) with respect to the player character to be marked. In view of the preferred embodiment of the video game (soccer), it may be added that – in accordance with the Examining Division’s finding – marking the foot zone of a player character may also be driven by the non-technical rules of the game, which confirms the non-technical character of that contribution.

By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the “two hurdle” approach with lots of examples:

Another difference over the closest prior art was that a team mate of the active player character is accompanied by a pass guide mark so that the active player character can easily pass the game medium (e.g. ball) to the team mate:

When the non-technical, game-rule-driven aspects of this feature are stripped off, the underlying technical contribution relates to the highlighting of a second point of interest, in addition to the active player character, on the display screen in order to draw the user’s attention to the second point on the screen. That is a technical contribution to be considered in the inventive step discussion.

A third difference over the closest prior art was that the pass guide mark is displayed on the end of the display area even when the other player character and the pass guide mark come out of the display area of the monitor screen so as to properly indicate the direction in which the game medium (e.g. ball) is to be passed by the player character:

The technical problem underlying this feature relates to conflicting technical requirements: On the one hand, a portion of an image is desired to be displayed on a relatively large scale (e.g. zoom in); on the other hand, the display area of the screen may then be too small to show a complete zone of interest. Resolving that conflict by technical means implies a technical contribution which has to be considered in the inventive step discussion.

The first two differences, albeit being technical contributions, were found to be obvious by the Board. The third difference – highlighting a second point of interest in addition to the active player character on the display screen to draw the user’s attention to the second point on the screen – was found to be non-obvious:

The technical contribution by feature [c] addresses the conflicting technical requirements of displaying an enlarged portion of an image (into which the user may have zoomed) and keeping an overview of a zone of interest which is larger than the display area. Conventional video game GUIs (as acknowledged by the appellant, see point V, last paragraph supra) compromise by superimposing a down-scaled map of the zone of interest on the enlarged portion of the image (covering a considerable part of that portion), or by zooming out (losing detail), or by shifting the viewing perspective (losing focus).

Feature [c] allows an enlarged portion of the image to be displayed and overview information to be provided to the user without sacrificing surface, detail or focus of the enlarged image portion.

In the Board’s judgment, the first and second instance discussions have not revealed any obvious pointer to a display device displaying a guide mark on the end of the display area in order to indicate a second point of interest which is being outside the display area of the monitor screen.

Therefore, the Board decided that claim 1 involves an inventive step.

More information

You can read the whole decision here: T 0928/03 (Video game/KONAMI) of 2.6.2006

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