The European Patent Office considered a method of programming a currency tester to have at least some technical features. Here are the practical takeaways from the decision T 0494/07 of May 13, 2011 of Technical Board of Appeal 3.4.03:
This patent application relates to a method of classifying an item of currency using a currcncy tester. It comprises the steps of sensing variable characteristics of a currency item and deriving a data vector using values of the sensed characteristics.
Claims 20 and 21 (main request)
20. A method of programming a currency tester (50) comprising storing data for executing a method as claimed in any preceding claim in a currency tester.
21. A method as claimed in claim 20 comprising deriving an acceptance threshold for a currency item using a Hotelling test.
Is it patentable?
The examining divsion reasoned its rejection essentially as follows:
Both the subject-matter of claims 20 and 21, which related to a method of programming a currency tester, and the final product being protected under Article 64(2) EPC 1973 were excluded from patentability under Article 52(2)(c) EPC 1973 with reference to programs for computers.
In contrast, the appelant argued as follows:
Claims 20 and 21 related to a method of programming a currency tester rather than to a program for computers and were therefore not excluded from patentability.
According to the Board in charge, however, the subject-matter of claims 20 and 21 provide technical character because the claimed method relates to storing data in a physical means rather than to a sequence of computer-executable instructions, i.e. a computer program, which merely have the potential of achieving an effect when loaded into and executed by a computer:
Claim 20 relates to a method of programming a currency tester. The claimed method therefore involves technical means, namely a currency tester, and is therefore regarded to have technical character (see the decision T 258/03 of the Boards of Appeal, reasons 4). In particular, the claimed method involves the step of storing data in a currency tester, with the effect that the data are in fact stored in the currency tester once the step has been carried out. This is to be contrasted to a sequence of computer-executable instructions, i.e. a computer program, which merely have the potential of achieving an effect when loaded into and executed by a computer. Thus, the claim category of the claimed method is distinguished from that of a computer program.
Claim 21 is dependent on claim 20 and as such includes all features of claim 20, so that the comments above also apply to that claim. The method defined in claim 21 is therefore also considered as an invention within the meaning of Article 52(1) EPC.
Thus, the Board remitted the case back to the department of first instance for further prosecution, as requested by the appellant.
You can read the whole decision here: T 0494/07 of May 13, 2011.
Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.