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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