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

Key takeaways

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

The invention

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

Fig. 3 of WO 03/014986 A2

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

  • Claim 1 (main request)

Is it technical?

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

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

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

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

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

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

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

More information

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

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