8.1 Information modelling
Information modelling, though a precursor for program design, has been considered to be a nontechnical activity as such. It might contribute to the technical character only if specifically applied in a technical environment.
8.2 Database technology
Database technology, in terms of the technical functions and data structures actually stored in the computer, has been found to be technical. Similarly, the exchange of data among various application programs by functional data structures (e.g. clipboard formats) was considered to enhance the internal operation of a computer system and hence to be patentable. Further programs judged favourably in terms of technical character relate to garbage collection in a computer memory and aspects of data retrieval
8.3 Mathematical methods/simulation/ computer-aided design
On the one hand, mathematical methods as such are also on the list of non-inventions. On the other hand, mathematics easily qualifies for technical applications. Simulation of an electrical circuit subject to 1/f noise was found to constitute neither a mathematical method as such nor a computer program as such, even if mathematical formulae and computer instructions were used to perform the simulation. Similarly, designing an optical system in accordance with an algebraic condition using an optics design program represented a technical activity. In both cases, the inclusion of an actual production step in the simulation or design method was not required.
8.4 Business methods/Financial transaction
gram constructs that themselves have technical character. It is therefore important to include as many concrete technical implementation details as possible to support sufficiency of disclosure and patentability prospects for innovations in this field.
Pure information contents are not patentable. However, the use of a piece of information in a technical system, or its usability for this purpose, may confer a technical character on the information itself in that it reflects the properties of the technical system in which it exists, e.g. by being specifically formatted and/or processed. Linguistic aspects of a translation process may also in principle assume a technical character if they are used in a computer system and form part of a technical problem solution.
8.6 Graphical user interfaces (GUIs)
Judicial practice is reluctant to attribute technical character to the design of graphical user interfaces, in particular if they are only based on aesthetic considerations or solely aim at facilitating human perception or mental processing. Visual indications of the internal states of a technical system in the form of visual feedback for human interaction with the system have, however, been accepted as technical. All in all, for the time being it appears that different Boards of Appeal, though using one and the same structured approach for assessing patentability, do not draw the line in respect of technical character of GUIs consistently, but very much depending on whether a broader or narrower construction of the meaning of “presentations of information” (which are excluded “as such”) is applied.
8.7 Computer games
Computer games naturally involve a mixture of nontechnical aspects of schemes, rules and methods for playing games, computer programs and presentations of information through graphical user interfaces. All of these aspects have to be carefully checked to see whether they make a technical contribution. Aspects purely driven by game rules have to be ignored.
Albeit not abundant at present, the existing case law throws light on the realms of technicality in bioinformatics and follows the established view in other technical fields that features excluded “as such” must not be ignored or separated if they serve a technical purpose and thus contribute to the technical character of the claimed subjectmatter. In particular, an automated genotype determination is technical and improving the confidence of the genotype estimate relates to a technical problem. Any means contributing to the solution of that problem therefore qualifies as technical means.
8.9 “Big data” and artificial intelligence
Not least due to the rapid development of the Internet and the success of smartphones, the global data pool has grown almost exponentially in the last few years. The development of modern highperformance processors and the steadily growing storage media enable efficient analysis of “big data”. Knowledge obtained from this in conjunction with artificial intelligence (AI) has created voice and face recognition systems, autonomously driving cars as well as adaptive production facilities. The latter meanwhile play a central role in the area of the Industry 4.0, with the use of AI not only improving known manufacturing processes but also the automation of drafting and design processes. But also in other hightechnology sectors, such as medical technology and pharmacy, AI systems are meanwhile increasingly used. The core of AI systems is usually constituted of software that controls and monitors training of self-learning AI systems.
As regards protection of AI-related inventions, a variety of aspects arise which have to be taken into consideration in the process of drafting and granting patents. What is paramount here is the protection of AI systems as such, of “big data” used for training the neural networks used in AI systems and of products manufactured by AI systems.
The case law of the EPO has hardly commented on the issue of patent protection of AI systems up to now. Consequently, the above-described rules and approaches from the field of computer-implemented inventions are also used for determining the patentability of AI-related inventions. Currently, establishing a technical character is therefore paramount here as well. The protection of products manufactured by AI systems appears to be less of a problem in this regard as the “conventional rules” are used for examining the patentability here.
However, the situation is different in the case of software-related components of AI systems. Since the functioning of an AI system is often not or hardly predictable, especially the plausible explanation of the functioning of an AI system is a great challenge in drafting a corresponding patent application as the latter has to disclose the invention in a manner sufficiently clear and complete for the person skilled in the art to be able to carry it out (or to rework it).
Therefore, it is advisable to comprehensively acknowledge in an associated patent application all components of an AI-related invention, from the training data and the configuration of the neural network underlying the AI system to the manufactured product or result.