Author: Michael Schüller

Power measurements – T 1892/17 – 27 August 2021

In this case, non-technical features were considered by the opponent to be non-technical as such. The Board argued that the whole scope of the claim should be considered. The claimed subject-matter includes the measurement of power and the allocation of power to consumers. The non-technical features interact with this technical subject matter and contribute to its technical character.

Object of the Invention

  • Claim 1 differs from the closest prior art (general purpose computer) in that a method is configured how to provide a more accurate control of the power consumption of individual consumers.

Opponent

  • Features like “determine characteristic time curves” and “wherein a plan for apportioning electric power is made” do not have a technical character, but rather relate to mere mental acts and therefore are not to be taken into account in the assessment of inventive step.
  • In particular, measurements in a 10 second interval could easily be recorded manually by a user and entered in a suitable table.

Board

  • When features like “determine characteristic time curves” and “wherein a plan for apportioning electric power is made” are considered in isolation, only involve data processing and simulation aspects.
  • However it is a general principle that the question whether a feature contributes to the technical character of the claimed subject-matter is to be assessed in view of the whole scope of the claim.
  • The data processing is defined in claim 1 as being based on (real) measurements of consumed electric power in a technical system, resulting in a plan and a prognosis, which does not produce a purely virtual effect.
  • Consequently, claim 1 is clearly limited to a technical teaching, involving the specific technical use of the calculated characteristic time curves, plan and prognosis.
  • Thus, irrespective of whether features are per se considered to be technical or non-technical in nature, in the overall context of claim 1, they in any case provide a technical contribution to the invention, having technical character as a whole, over the prior art, and are consequently to be taken into account in the assessment of inventive step.

Conclusion

The below figure shows according to G 1/19, point 85 and 86 how and when “technical effects” or “technical interactions” based on inter alia non-technical features may occur in the context of a computer-implemented process (the arrows in the figure above represent interactions and not abstract data). In this decision the software/ non-technical features contribute to the technical character of the invention via the input side and the output side.

Virtual welding – T 2594/17 and T 2607/17 – 20 May 2021

In this case, a system for virtual testing and inspection of a virtual weldment was claimed. The system has, inter alia, no link to a “real” weldment and no technical implementation. Therefore, the non-technical features are not considered for inventive step and the system is not inventive.

Object of the Invention

  • The claimed system renders a 3D image, which can also be an animated 3D image (of a virtual weldment) and processes this image by simulating testing and inspection of the virtual 3D weldment for a user training. It then displays the processed image and allows the user to move it around.
  • Claim 1 differs from the closest prior art (general purpose computer) in that it is configured to display images of virtual weldments, of virtual testing of those virtual weldments, and of the results of the virtual testing on those virtual weldments. It can also determine a pass/ fail condition based on those results (for a user test).

Appellant

  • The system processed virtual weldments and this indicated that it was part of a virtual reality system for generating the virtual weldments (VRAW system).
  • The claimed system should therefore be considered as a feedback component of the VRAW system, which contributed to the generation of virtual weldments of better quality.

Board

  • The claims do not define or suggest any connection or relation of the claimed system with the VRAW system.
  • The board does not see the claimed system as a feedback component of the VRAW system
  • Only a virtual weldment is generated, mainly for training purposes, and without any link to a particular “real life” weldment.
  • It is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or process (see G 1/19 e.g. points 1 and 2 of the Headnote).
  • –> not inventive

Conclusion

The below figure shows according to G 1/19, point 85 and 86 how and when “technical effects” or “technical interactions” based on inter alia non-technical features may occur in the context of a computer-implemented process. In this decision the software/ non-technical features do not contribute to the technical character of the invention via the input data/ output data/ technical implementation. Therefore, the non-technical features are not considered for the assessment of inventive step.

Pedestrians simulation – G 1/19 – March 10, 2021

In this article you will find key takeaways from G 1/19. The information is based, inter alia, on the presentation “Aftermath of G1/19” by Kemal Bengi of the Boards of Appeal.

Referal case T 489/14

  • The invention in the ex-parte case relates to a simulation of the movement of pedestrians through an environment (e.g. a building like a stadium or railway station).

Results of the Enlarged Board of Appeal

  • If the invention does not solve a technical problem, it has no distinguishing features that could contribute to inventive step (point 49).
  • Using the problem-solution approach, the analysis under Art. 56 EPC may reveal that a specific problem is not solved (i.e. a specific effect is not achieved) over the whole scope of the claim. In such cases, the … specific problem may not be considered as the basis for the inventive step analysis unless the claim is limited in such a way that substantially all embodiments encompassed by it have the desired effect (point 82).
  • Only those technical effects that are at least implied in the claims should be considered in the inventive step analysis (point 124).
  • The existence and technicality of the system to be simulated is not a relevant criterion for the patentability of computer-implemented simulations (points 109, 120).
  • A “direct link with physical reality” is not a necessary condition for contributing to the technical character of the claimed invention (point 88).
    • “Measurements” and “indirect measurements” are related to physical reality and are therefore of a technical nature (point 99).
  • An “adequately defined technical purpose” should not be taken as a generally applicable criterion of the COMVIK approach (point 133).
  • Simulation models and algorithms mainly define non-technical constraints to be considered in the context of the COMVIK approach, but may contribute to technicality if, for example
    • they are a reason for adapting the computer or its functioning or
    • they form the basis for a “further technical use” of the outcome of the simulation (points 110, 137).
  • The accuracy of a simulation is a factor that may have an influence on a technical effect going beyond the implementation of the simulation.
  • An indication of the “intended technical use” or “further technical use” of the simulation results in a claim could contribute to the technical character of the claimed invention (points 94, 124).

G 1/19 Conclusions

Pedestrians simulation/BENTLEY SYSTEMS – T 489/14 – 26 November 2021

The present decision is the reference decision to G 1/19, which was finally decided after decision G 1/19, as explained below. Among other things, it dealt with the question of whether the output data of a simulation result in the non-technical features of the simulation making a technical contribution and therefore being taken into account for the assessment of inventive step. At the end (conclusion), a bridge is again built to the decision G1/19.

Subject matter main request

  • The invention in the ex-parte case relates to a simulation of the movement of pedestrians through an environment (e.g. a building like a stadium or railway station).
Pedestrians simulation/BENTLEY SYSTEMS – T 489/14 – 26 November 2021

Board

  • The data produced by the method of claim 1, which reflects the behaviour of a crowd moving through an environment, does not contribute to a technical effect.
  • The potential use of such data is not limited to technical purposes, as it can be used e.g. in computer games or presented to a human for obtaining knowledge about the modelled environment.
  • Computer games and presentation of information are examples of non-technical uses of data falling within the scope of claim 1.
  • Therefore, there is no technical effect over the whole claimed scope derivable and the non-technical features are not contribute to the technical character.
  • –> no inventive step

Subject matter auxiliary request

  • Claim 1 of an auxiliary request additionally comprises the use of a profile for a pedestrian based on a set of measured attributes (in response to G 1/19, point 85: “technical input may consist of a measurement”).

Appellant

  • The additional feature leads to a “more accurate simulation”.

Board

  • A “more accurate simulation” per se cannot contribute to a technical character (cf. G 1/19, point 111).
  • Claim 1 does not contain a measurement step, but merely indicates that the attributes are somehow measured.
  • Therefore, no technical effect is derivable.
  • –> no inventive step

Conclusion

  • The below figure shows according to G 1/19, point 85 and 86 how and when “technical effects” or “technical interactions” based on inter alia non-technical features may occur in the context of a computer-implemented process (the arrows in the figure above represent interactions and not abstract data).
  • The subject matter of the main request deals with output data of a simulation, wherein the use is not limited to technical purposes.
  • According to G1/19, points 94 and 95: With respect to potential technical effects, the Enlarged Board added that if claimed data or data resulting from a claimed process was specifically adapted for the purpose of controlling a technical device, the technical effect that would result from this intended use of the data could be considered “implied” by the claim. However, this argument could be made only if the data had no other relevant uses, since otherwise the technical effect was not achieved over substantially the whole scope of the claimed invention.
  • Furthermore, the subject matter of the auxiliary request deals with a profile for a pedestrian based on a set of measured attributes. According to the appellant, this should represent input data in the form of a measurement.
  • In G 1/19 the Enlarged Board had pointed out that technical effects could occur at the input of a computer-implemented process (see figure above) and that technical input could consist of a measurement.
  • The question to be answered is whether the input data/ measuring step and the simulation method are not merely juxtaposed, the output of the measuring step serving as an input for the simulation method, but interact to produce a combined technical effect.
  • An interaction may be present, for example, if the combination amounts to an indirect measurement of a specific physical entity by means of measurements of another physical entity (see G 1/19, point 99).
  • The method of claim 1 provides information about the movement of simulated pedestrians through a modelled building structure. Since the calculated information is neither used in a further step of the method nor specifically adapted for the purposes of an intended technical (and only relevant) use, it has to be investigated whether the information represents a measurement of a physical entity.
  • The modelled building structure does not correspond to a building structure that was measured, whether directly or through measurement of its physical effects on other physical entities.
  • In fact, the modelled building structure need not correspond to any existing building structure. Nor does the calculated information about the movement of simulated pedestrians represent a direct or indirect measurement of any of the real pedestrians (or other physical entities) that were measured in the process of generating the pedestrian profiles.
  • Hence, in the present case no physical entity (or process) can be identified which could potentially be measured by the method of claim 1 in the sense that its physical status or some physical property is described by information calculated on the basis of data obtained by a direct or indirect physical interaction with the entity.

Content item visibility/GOOGLE – T 1422/19 – 19 May 2021

The software discussed in this decision carries out an indirect measurement. The software measures/ determines a web page viewing area based on the measurement/ input data/ raw data of the size of a browser window. Such indirect measurements are of a technical nature, regardless of what use is made of the results (cf. G 1/19, point 99).

Object of the Invention

  • Estimating the size of a browser’s viewport/ web page viewing area from within a cross-domain iframe (iframe is e.g. from a separate ad server). Due to security constraints, the size of the viewport cannot be accessed directly from within a cross-domain iframe.
  • Claim 1 differs from the closest prior art in that Document D1 in that the size of the viewport/web page viewing area is determined by reading the size of the browser window and subtracting from the size of the browser window the average size of one or more browser elements as determined by a statistical analysis based on historical measurements.

Examining Division

  • The determination of the estimated size of the viewport correspondeds to a technical implementation of a non-technical rule (compute the estimated size) based on a business requirement.
  • Since the determined output size was an estimated value, it circumvented the technical problem of actually measuring the viewing area rather than addressing it.

Board

  • It is true that the method of claim 1 does not include a technical use of the calculated/estimated content visibility. In fact, the claim specifies that the information about the visibility of the content item is reported to a content sponsor.
  • However, the method does not merely calculate this information from numerical input data but measures “raw” information about a running web browser and processes this information to produce an estimate of a technically meaningful parameter, namely the extent to which a content item displayed within a web page is visible to the user, and on the basis of technical considerations relating to what is possible with an unmodified browser that enforces standard security constraints.
  • Such an indirect measurement is normally of a technical nature (see G 1/19, point 99).
  • Subject matter of claim 1 is inventive.

Conclusion:

The below figure shows according to G 1/19, point 85 and 86 how and when “technical effects” or “technical interactions” based on inter alia non-technical features may occur in the context of a computer-implemented process. In this decision the software/ non-technical features contribute to the technical character of the invention via the input data.

Rain-sensitive parcels/IVECO – T 1806/20 – 17 November 2023

At the EPO, data relating to software-related inventions may, under certain conditions, be regarded as data of a technical character. This means that such data will be taken into account as a distinguishing feature in the examination of inventive step. Data may have a technical character if they are so-called “functional data”. A typical example of “functional data” is data intended to control a technical device. In the following decision T 1806/20, the appellant tried to present “cognitive data” as “functional data”. The appellant relied on the earlier decision T 1194/97, which identifies a type of test method that can be used to determine whether the data are “functional data”.

Object of the Invention

  • A parcel delivery system that seeks to prevent damage to water-sensitive parcels by avoiding delivery to rainy destinations.
  • Claim 1 differs from the closest prior art (CPA) inter alia by rescheduling of the delivery based on the parcels’ sensitivity to water and a rain forecast.

Appellant

  • The prevention of damage to physical objects was a fundamental technical problem that was addressed throughout various areas of technology.
  • The appellant did not dispute that delivering multiple parcels at different destinations and planing such delivery constituted a non-technical logistics scheme.
  • The rescheduling of the delivery based on the parcels’ sensitivity to water and the rain forecast do not form part of the non-technical logistic scheme.

Board

  • Contrary to the appellant’s view, the Board judges that the requirement to ensure that parcels do not get damaged by water forms part of the non-technical logistics scheme.
  • The Board is not convinced by the argument that information about a parcel’s water-sensitivity is functional technical data, because its loss would impair the technical operation of the system (cf. T 1194/97, reasons, point 3.3).
  • It is self-evident that if a piece, either technical or non-technical, of any invention is taken out, it would not work as designed.
  • In the Board’s view, what T 1194/97 is saying is rather that the loss of functional data would make the system inoperable at the technical level.
  • In contrast, if cognitive data is lost, the system would still work but possibly produce results that would be unintended for non-technical reasons.
  • Thus in T 1194/97, the loss of functional data prevented the system from generating any television picture, whereas the loss of cognitive data only resulted in a meaningless television picture resembling snow.
  • In the present case, the loss of water-sensitivity information would not cause the system to stop working; the vehicle would still be guided, and parcels would be delivered. However, it would result in leaving water‑sensitive parcels standing in the rain – an unintended operation comparable to producing a television picture that resembles snow. The reasons why these outcomes are unintended are non-technical. In T 1194/97, it was the cognitive meaninglessness of the television picture to a human viewer; in the present case, it is the prevention of rain damage to a parcel. Hence, judged by the consequence of its loss, the water-sensitivity data is equivalent to cognitive rather than functional data.

Conclusion

This decision deals with “functional data”. Such data is intended for controlling a technical device may be considered to have technical character because it has the potential to cause technical effects. In G1/19, reasons, point 94 the Enlarged Board of Appeal has generalized this as follow:

In the context of the problem-solution approach and the COMVIK approach, such potential technical effects may be considered if the data resulting from a claimed process is specifically adapted for the purposes of its intended technical use. In such cases:

  • either the technical effect that would result from the intended use of the data could be considered “implied” by the claim, or
  • the intended use of the data (i.e. the use in connection with a technical device) could be considered to extend across substantially the whole scope of the claimed data processing method.

Data is considered to be functional data when its loss would impair the technical operation of the system (cf. T 1194/97, reasons, point 3.3). This means, data is considered to be functional data, when the loss of the data would make the system inoperable at the technical level. In contrast, if cognitive data is lost, the system would still work but possibly produce results that would be unintended for non-technical reasons.

E.g. in T 1194/97, the loss of functional data prevented the system from generating any television picture, whereas the loss of cognitive data only resulted in a meaningless television picture resembling snow.

E.g. in T 1806/20, the loss of water-sensitivity information would not cause the system to stop working; the vehicle would still be guided, and parcels would be delivered. However, it would result in leaving water‑sensitive parcels standing in the rain – an unintended operation comparable to producing a television picture that resembles snow. The reasons why these outcomes are unintended are non-technical. In

T 1194/97, it was the cognitive meaninglessness of the television picture to a human viewer; in T 1806/20, it is the prevention of rain damage to a parcel. Hence, judged by the consequence of its loss, the water-sensitivity data is equivalent to cognitive rather than functional data.