In this decision, the European Patent Office refused to grant a software patent on the concept of assessing the competence of an organisation by processing score data. Here are the practical takeaways of the decision T 1902/13 (Assessing competence levels/SWISS RE) of 4.7.2019 of Technical Board of Appeal 3.5.01:

Key takeaways

Designing questions for determining competence levels and method steps and decisions leading thereto as well as mathematical/statistical operations of weighting, scaling and norming are all in the non-technical domain of an economist or a business person and do not make an inventive technical contribution.

The invention

This European patent application relates to a computer-based method for assessing competence levels of an organisation with multiple organisational units, as conventionally assessed by business consultants.

A computer stores scores related to answers given by a human representative of organisational units in response to defined questions. The computer assigns each score to one of the organisational units. For the organisational units, total scores are calculated in the computer by adding up the scores assigned to the respective organisational unit. Moreover, the computer calculates weighted total scores for the organisational units by adding up weighted maximum scores assigned to the questions. The weighted maximum scores each depend on the respective organisational unit and the respective question. Finally, the computer calculates competence levels of the organisational units. The results are provided by generating a graphical representation.

The applicant also filed an auxiliary request during the appeal stage, which adds the use of a rules-based expert-system.

Fig. 5 of EP 1 649 420
Fig. 5 of EP 1 649 420

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

First of all, the board briefly assessed whether the invention as defined in claim 1 was patent-eligible. As the avid reader will know, patent-eligibility is a very low hurdle at the EPO and thus there was no problem in this regard:

The claims are directed to a mix of technical and non-technical features. The Board does not dispute that the methods according to claims 1 and 8 appear in a technical context. The methods can be considered to be performed by technical means, because they involve a computer with means for storing data, means for processing data and means for transmitting and receiving data, and, therefore, have 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“).

But the challenging question with mixed-type inventions is regularly that of inventive step, which requires an assessment of whether the invention makes a technical contribution over the prior art. Readers of this website will know that 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).

Here the board sided with the first-instance examining division and found that most of the features of claim 1 were non-technical:

The Board agrees with the contested decision that except for the features relating to the technical infrastructure of a general purpose computer system, the features pertain to an administrative method, i.e. to the non-technical part of claim 1 and claim 8. Thus, the assessment of inventive step in the decision under appeal correctly considered a notoriously known general purpose computer system to be the closest prior art (see points 2 and 10 of the decision). Such a general purpose computer system was capable of storing, assigning, weighting, calculating and presenting all kinds of data. The claims as well as the description of the application lack technical detail with regard to the claimed computer system. Consequently, the Board does not find a specific disclosure of any technical aspect that could distinguish the computer system, on which the claimed method is based, from such a general purpose computer system.

Regarding the part of the invention which concerned the selection of questions and evaluating the answers, the board came to the following conclusion:

Designing questions for determining competence levels and method steps and decisions leading thereto as well as mathematical/statistical operations of weighting, scaling and norming are all in the non-technical domain of an economist or a business person (Article 52(2)(a) and (c) EPC) and do not make an inventive technical contribution. The parameters resulting from those questions are considered to be non-technical, i.e. cognitive data.

Also the computer implementation did not help, since the board found that the computer system would still follow the same principles as the business consultant:

A business consultant, who wants to assess the competence of an organisation would design a set of rules and questions, which can be reused for another organisation. In order to present meaningful results, e.g. on a flip-chart using graphical diagrams like well known spider diagrams, the business consultant would have to transform the answers into numerical values, scale and weight them. No computer would be needed for performing these tasks. The more dimensions the quantities require, the more cumbersome and time consuming these tasks would be. According to the invention, parts of the process are therefore automated using a computer system. However, the computer system would still follow the same principles as the business consultant following the underlying administrative concept according to the set of rules and questions. The Board does not agree with the appellant’s argument put forward during oral proceedings, that the business person and the skilled programmer would have to sit together in order to elaborate a workable solution. Rather the underlying administrative concept following the traditional business consultant approach would be provided to the programmer as a requirements specification.

The appellant had also argued that the invention automatically initiated certain decisions, but without success:

The Board does not see how the claimed invention can automatically initiate decisions (“automatische Initiierung von Verfahrensentscheidungen”) as argued by the appellant (see page 5, last paragraph of the grounds). Every decision concerning what to do in order to improve competence has to be taken by a human interpreting the diagrams or the data in general. There is no automation in this regard and this goes beyond what is covered by the independent claims.

Furthermore, also the appellant’s arguments regarding the technical character of th rule-based expert system (pursued in the auxiliary request) did not prevail:

The application discloses “Generally, questions with assigned low scores will determine the steps and areas of possible improvements. For example, computer 1 retrieves the steps and areas of possible improvements from a table stored in memory 12. Preferably, the steps and areas of possible improvements are determined by means of an expert system” (see the paragraph bridging pages 15 and 16).

However, no detailed technical disclosure of an expert system is found in the application, in particular how it has to be implemented. The knowledge and rules on which such an expert system is based, are considered to be part of the non-technical business related concept, which are part of the requirement specification (see point 3.3 above). The computer follows the same rules and questions that were designed by the business consultant. There is no added value in the decision making process caused by the computer means except for automation of calculations for scaling and weighting the values corresponding to the answers.

One further argument by the appellant was that the invention provided an improved man-machine interface, which is regularly accepted as technical by the boards of appeal. However, not in this case:

The contribution of the invention also does not lie in an improved man-machine interface as argued by the appellant with regard to a graphical representation. The man-machine interface used according to claim 1 is that of a general purpose computer which was notorious knowledge before the priority date. The contribution lies rather in the way of associating information with collected competence related data. Such data, however, in the Board’s view, is not technical, since it is cognitive data, not functional data (see T 1194/97 Data structure product/PHILIPS, OJ EPO 2000, 525). Storage, selection and processing of such data is an administrative measure, such as would be performed by a human when designing questions and assessing competence levels, implemented in a straight-forward manner making use of general purpose computer functions (e.g. storing and retrieving information and displaying content in electronic form) without creating a further technical effect.

Also with regard to the specific selection of a spider diagram for the graphical representation, the board had doubts regarding its technical contribution:

The appellant further argued that generating a graphical representation constituted a technical contribution. The Board does not agree. The appellant specifically referred to spider diagrams. The application discloses “preferably in the form of a so-called spider diagram” (see the sentence bridging pages 14 and 15). This clearly shows that such diagrams were already known and widely used when graphically presenting multiple parameters in one diagram. The Board agrees with the contested decision that the effects are in the subjective and mental area of presentation of information. The Board doubts that the kind of a diagram like a spider diagram contributes to the technical character. However, it would be an obvious choice for graphically presenting multiple parameters in one diagram for human interpretation and decision making. This feature therefore does not provide an inventive technical contribution.

Therefore, the board’s point of view did not differ from the first instance examining division and the board thus dismissed the appeal.

More information

You can read the whole decision here: T 1902/13 (Assessing competence levels/SWISS RE) of 4.7.2019

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