Tag: 3.5.06

Configuring a system-of-systems with membrane computing/SIEMENS – T 1565/ 17 – 9 January 2018

In this decision the appellant argued inter alia, that it is not possible to prove the expected technical effect and that this obliged the board to accept the effect unless it could “falsify” it.

Object of the Invention:

  • the application relates to what is called the “configuration of a system-of-systems“
  • the term “system-of-systems” is said to have arisen in the systems engineering community, where it “reflects the concepts and developments” of real systems such as “smart grids, integrated supply chains, collaborative enterprises, and next-generation air traffic management“
  • a system-of-systems is “a collection of independent systems that work together to create a new, more complex system which offers more functionality and performance than simply the sum of the constituent systems“
  • configuration of a system-of-systems is said to be “the task of selecting the optimal subset of component systems, that can perform the required task“
  • the problem/task is rephrased in mathematical terms as a selection problem
  • the relevant “characteristics” C of any system-of-systems SoS are defined as a set of pairs of attributes A and values from a set Domain(A) of all values which the respective attributes can take: Hence, the set of all possible such characteristics is C(SoS) = union of all attribute-value pairs Ai x Domain(Ai)
  • the available components for any particular system are given as a set S of components Si, each having some characteristics: Thus C(Si) is a subset of C(SoS) for any Si
  • the required characteristics are given as a subset of all possible ones too: C(R) is a subset of C(SoS)
  • the configuration problem is then said to be the problem of finding an “optimal” subset Simpuls of the available components S so that their characteristics include the required ones: C(R) must be a subset of C(Simpuls)
  • the notion of optimality is not defined in the application
  • the declared objective of the invention is to solve this “system-of-systems configuration problem” with “membrane computing“, which is disclosed as being “a variation of” P-systems, a computational model “inspired” by biological processes
  • the invention is said to rely on “a new kind of solver” which is “constructed using membranes, also called P-systems, and uses metaphors of chemical reactions occurring in living cells”

Appellant I (issue to be decided)

  • use of “membrane computing” is the only difference over D1
  • this difference has the effect of making it “possible to solve the occurring NP-hard problems […] in linear time”
  • the objective technical problem solved by the invention thus has to be seen as “improv[ing] the time behavior of a method for the configuration of a system-of-systems“
  • the claimed invention involves an inventive step because “there is no teaching in the prior art that would have prompted the skilled person, faced with the objective technical problem, to modify” D1 “by means of membrane computing“
  • a “skilled person, confronted with the invention and with the information about” D2 “would accept” that by using “membrane computing” the “occurring NP-hard problems in the method” for the configuration of a complex system-of systems “can be solved in linear time“
  • D2 “is conclusive proof” of “the claimed technical effect“
  • “it is principally not possible for the applicant to prove the expected technical effect“, suggesting that the invention was “a theory in the empirical sciences“, which, according to Sir Karl Popper, “can only be falsified“
  • this obliged the board to accept the effect unless it could “falsify” it

Board I (clarity)

  • Claim 1 refers to “configuration of a system-of-systems without defining either “system-of-systems” or the problem of “configur[ing]” one, apart from mentioning that a “components system” has “roles described by […] participation statements” and “a set of requirements” which a configuration has to “fulfill”
  • both terms are unclear
  • there is no indication in the application that the term “system-of-systems“, or the problem of configuring one, has an established clear meaning in the art
  • the application itself uses these terms in two significantly different ways […]
  • D1 stresses further differing aspects of a “system-of-systems“, namely that the system components are related to each other by “use” relationships
  • Claim 1 states that the configuration of the system-of-systems is computed “by means of membrane computing“
  • the term “membrane computing“, and the notion of computing something “by means of” membrane computing, to be unclear in this generality […]
  • in response to the board’s objections relating to clarity, the appellant has merely asserted that the claims are “clear enough” for the relevant skilled person
  • this sweeping asserting does not sway the board’s opinion
  • in this respect it is only of passing relevance that the skilled person is insufficiently characterised as having an unspecified “academic” education and “scientific work experience”
  • claim 1 does not specify in clear terms the problem addressed (“configuration of a system-of-systems”) or the solution proposed (at least with regard to the phrase “by means of membrane computing”) and is thus unclear

Board II (further remarks)

  • since claim 1 does not specify the problem to be solved or its solution, it is impossible to determine the complexity class of the problem or the computational complexity of the solution
  • for this reason alone, the appellant’s allegation that the claimed invention solved “the occurring NP-hard problems […] in linear time” is without merit
  • the board notes at this point that computational complexity theory is not, as the appellant seems to suggest, an empirical theory which is not amenable to proof
  • to the contrary, complexity theorems are established by mathematical proof and their limits are precisely indicated
  • therefore, if the appellant’s inventive step argument turns on an improved time behaviour, a rather specific one in particular, it is for the appellant to establish that the proposed solution has the claimed time complexity, and in which situations or under which circumstances it applies

Expert system/SCHINDLER – T 1817/ 14 – 4 July 2017

This decision concerns information modelling by a user to create a data structure, where this modelling has no technical effect. Therefore, the modelling steps are considered as an aim to be achieved in a non-technical field and used for the formulation of the technical problem (COMVIK II). The data structure created by the user also has no technical advantage for a claimed subsequent query processing.

Object of the Invention:

  • expert system for aiding patent administration and jurisprudence by providing (semi)automated support for assessing a patent or patent application (or other “endeavour”) for novelty and inventive step in view of “a national patent system or its Highest court precedents”
  • the invention proposes to obtain from a patent (or patent application) p and any prior art document i elements of their respective technical teachings TT.p and TT.i
  • the TT.i’s of the prior-art document i are collectively referred to as “RS” (reference set) and, in combination with the TT.p’s, as “PTR” (pair of TT.p and RS)
  • the elements and their “relations”, expressing anticipation and contradiction between elements or sets of elements, are arranged in what is called an ANC matrix (“anticipates/non-ants/contradicts”)
  • the information in this matrix can be queried by and is then displayed to the user

Board I (claim construction)

  • the claimed method has two phases: the first phase leads to the creation of the ANC matrix which, in the second phase is used to “automatically and instantly” produce responses to user queries
  • the major part of the first phase is done by the user
  • only the processing of user queries is meant to be automated

Board II (technical effects and inventive step)

  • the major part of claim 1 is a modelling procedure during which the user considers the items in the domain of interest, extracts their relevant properties, and “compiles” them “into” a formal language
  • following T 49/99, this procedure of information modelling to be an intellectual activity
  • (effectively a method for performing mental acts, Article 52(2)(c) EPC) which does not, per se, contribute to the technical character of an invention
  • for this conclusion it is immaterial that the present application does not even relate to the modelling (let alone simulation) of a physical system but to the modelling of what a given set of documents discloses and how they relate to each other
  • accordingly, a technical contribution of the present invention could only lie in the way in which the generation and use of the model are implemented

Appellant I (technical effects and inventive step)

  • particular features of the ANC data structure had to be considered to be technical
  • in particular that the ANC had to reflect the analysis of documents in terms of two different levels of granularity (“elements” and “fundamental facts of these elements”) and that it contained novel fields (e.g. “anticipates/not-anticipates-and-not-contradicts/contradicts” as claimed)

Board III (technical effects and inventive step)

  • the appellant did not argue that the particular ANC data structure had a specific technical advantage for the subsequent query processing
  • the appellant was thus unable to convince the board that the modelling steps caused any technical effect
  • when, however, the modelling steps are assumed to be taken as an aim to be achieved in a non-technical field – according to established jurisprudence of the boards of appeal (see T 641/00, headnote 2) – the form of the ANC is determined by the model and thus obvious
  • the computer support specified in claim 1 does not go beyond the general statement that a computer is used to support the users in their task
  • likewise, the feature that users may query the “items” in the ANC and the method replies “automatically and instantly by displaying to the user this item’s information and all its such relations to other items” does not, in the board’s judgement, go beyond the statement that the information in the ANC may be accessed by user queries, as is known from prior-art database systems
  • –> claim 1 lacks inventive step in view of common knowledge, as an obvious way of providing computer support to an essentially non-technical method

 

 

Automated script grading/UNIVERSITY OF CAMBRIDGE – T 0761/20 – 22 May 2023

In this decision the Board gives far-reaching statements for an “implied technical use” and “what is technical” based on G 1/19.

Object of the Invention

  • the application relates to automated assessment of scripts written in examination, in particular English for Speakers of Other Languages (ESOL) examinations
  • the object is to provide a computer system that can automatically grade text scripts [and provide grades] that correlate well with the grades provided by human markers

Examining Division:

  • distinguishing features merely representing mathematical or linguistic operations and entities, implemented on a general-purpose computer
  • distinguishing features are not directed to a specific technical implementation going beyond the common use of a general-purpose computer
  • distinguishing features are not limited to a technical purpose, since it is not specified how the input and the output of the sequence of mathematical or linguistic steps relate to a technical purpose, so that said it would be causally linked to a technical effect
  • grading text scripts is not considered as serving a technical purpose

Appellant:

  • the problem addressed is “providing a computer system that can automatically grade text scripts [and provide grades] that correlate well with the grades provided by human markers“
  • distinguishing features reflected “further technical considerations“, for which case it stated that G 3/08 “guaranteed” that a technical character is present
  • invention provides a technical contribution in the field of “educational technology”, defined as “the combined use of computer hardware, software, and educational theory and practice to facilitate learning”

Board (part I) (technical effect within the computer):

  • the model is not based on technical considerations relating to the internal functioning of a computer (e.g. targeting specific hardware or satisfying certain computational requirements)
  • the preference ranking is chosen merely according to its educational purpose, which does not relate to any effects within the computer
  • the claimed training procedure might constitute a technical contribution to the state of the art (see e.g. G1/19, reasons 33); taken alone, however, this is a mathematical method, so this contribution is in the – excluded – field of mathematical methods (see T 0702/20 and T 0755/18, catchwords) and is therefore not a patentable contribution

Board (part II) (technical effect via “implied technical use”):

  • what remains as a potentially patentable contribution is the purpose of the claimed system to provide an automated tool for script grading (since no technical effect within the computer is established)
  • questions to be answered are (i) whether the problem is, or implies, a technical one, and (ii) whether it is actually solved (T 641/00, reasons 5 and 6)
  • question (ii): the human grading process is a cognitive task in which the marker evaluates the content of the script to assign a grade
  • the assigned grade depends on the content of the scrip itself, but is also at least partly subjective: the marker will have preferences as to style and language, and will be influenced by experience and grades assigned to scripts in the past
  • it is doubtful that the problem of automating script grading is defined well enough that one can properly assess whether it has been solved, i.e. in the sense that it provides a system that can actually replace different human markers and provide “correct” grades
  • the invention may be useful, as the for the (self-)evaluation of linguistic competences by students
  • it is assumed that the problem, as qualified by the Appellant, is solved
  • under this assumption, there is a first argument that any automation of human tasks, irrespective of the task, is sufficient to conclude that a technical problem is solved, as it reduces human labor
  • this argument contradicts the requirement of G 1/19 that there must be a technical purpose
  • G 1/19 was related to computer-implemented simulations, its reasons apply to computer-implemented methods other than simulations as well
  • Enlarged Board stated that “information which may reflect properties possibly occurring in the real world […] may be used in many different ways“, that “a claim concerning the calculation of technical information with no limitation to specific technical uses would therefore routinely raise concerns with respect to the principle that the claimed subject-matter has to be a technical invention” (reasons 98) and that “[if] the claimed process results in a set of numerical values, it depends on the further use of such data (which use can happen as a result of human intervention or automatically within a wider technical process) whether a resulting technical effect can be considered in that assessment” (reasons 124), and concluded that “such further [technical] use has to be at least implicitly specified in the claim” (reasons 137)
  • therefore, the argument that a technical problem is already solved by the mere provision of any automated tool cannot succeed
  • it is assumed that the claimed invention serves the purpose of supporting its users in evaluating linguistic competences
  • the question remains whether the assessment of linguistic competences, or maybe merely providing a grade, is a technical purpose

Board (part III) (What is technical?):

  • Appellant considers that automated grading makes a technical contribution in the field of “educational technology” and, if the Board disagrees, asks the question “what is a technical field?” or “a field of technology?”
  • the express reference to “fields of technology” in Article 52(1) EPC, introduced with the EPC 2000 in order to bring Article 52 EPC in line with Article 27(1) TRIPS, was not intended to change the established understanding that patent protection is “reserved for creations in a technical field“, i.e. involving a “technical teaching […] as to how to solve a particular technical problem” (see OJ EPO Special edition 4/2007, 48, but also G 1/19, reasons 24, and T 1784/06, reasons 2.4)
  • the field of “educational technology” as defined by the Appellant is a rather inhomogeneous one, covering insights from – and presumably contributions to – a wide range of “fields“, technical ones and non-technical ones
  • it appears questionable that this field can be considered a technical one as a whole (however, this question is not decisive)
  • what is decisive, according to established case law of the Boards of appeal, is whether the invention -makes a contribution which may be qualified as technical in that it provides a solution to a technical problem
  • if this is the case, a contribution to a field of technology may be said to also be present
  • it is noted that the “field” of this contribution may be different from the one to which the patent more generally relates: for instance, inventions within the broad field of “educational technology” may make contributions in the field of computer science
  • in G 1/19, the Enlarged Board followed its earlier case law and “refrain[ed] from putting forward a definition for ‘technical’“, because this term must remain open (section E.I.a, especially reasons 75 and 76; see also OJ EPO Special Edition 4/2007, 48)
  • the Enlarged Board provided considerations as to what may be considered technical
  • the Enlarged Board had suggested that a technical effect might require a “direct link with physical reality, such as a change in or a measurement of a physical entity” (see T 489/14, reasons 11)
  • the Enlarged Board accepted that such a “direct link with physical reality […] is in most cases sufficient to establish technicality” (reasons 88) and, in this context, that “[it] is generally acknowledged that measurements have technical character since they are based on an interaction with physical reality at the outset of the measurement method” (reasons 99)
  • the Enlarged Board also stressed that an effect could also be “within the computer system or network” (i.e. internal rather than “(external) physical reality”, see G 1/19, reasons 51 and 88)
  • the Enlarged Board recalled that potential technical effects might also be sufficient (see also reasons E.I.e), i.e. “effects which, for example when a computer program […] is put to its intended use, necessarily become real technical effects” (reasons 97)
  • the Enlarged Board considered that calculated data, while “routinely raising concerns with respect to the principle that the claimed subject-matter has to be a technical invention over substantially the whole scope of the claims” might contribute to a technical effect by way of an implied technical use (reasons 98 and 137), “g. a use having an impact on physical reality” (reasons 137)
  • while the Enlarged Board has thus found that a direct link with physical reality may not be required for a technical effect to exist, it has, in this Board’s view, confirmed that an at least indirect link to physical reality, internal or external to the computer, is indeed required
  • the link can be mediated by the intended use or purpose of the invention (“when executed” or when put to its “implied technical use”)
  • returning to the case at hand, the Board finds that automated script grading, by itself or via its intended use for evaluating linguistic competences, does not have an implied use or purpose which would be technical via any direct or indirect link with physical reality
  • the claimed computer-implemented method of automated script grading does not provide a contribution to any technical and non-excluded field, be it by way of how the automation is carried out, or by way of its use
  • à no inventive step

Board (part IV) (Referral to the Enlarged Board of Appeal):

  • the case law of the Boards of Appeal on the question of what is “technical” or a “field of technology” is sufficiently uniform (see in particular G 1/19) so that a referral to the Enlarged of Appeal is not required
  • the term “educational technology” is too vague to be relevant for deciding the present case
  • even within a field of technology a patentable invention must be shown to solve a technical problem
  • in the present case, the Board was unable to identify a specific technical problem solved by the invention

Summary

  • Appellant: problem is to provide an automated tool for script grading that correlate well with the grades provided by human markers
  • Board: no technical effect within the computer
  • Board: doubtful that problem is solved
  • Board: it is assumed that the problem is solved
  • Board: based on G1/19 the argument that a technical problem is already solved by the mere provision of any automated tool cannot succeed
  • Board: it is assumed that the claimed invention serves the purpose of supporting its users in evaluating linguistic competences
  • Board: the question remains whether the assessment of linguistic competences, or maybe merely providing a grade, is a technical purpose
  • Appellant: considers that automated grading makes a technical contribution in the field of “educational technology” and, if the Board disagrees, asks the question “what is a technical field?” or “a field of technology?”
  • Board: the field of “educational technology” as defined by the Appellant is a rather inhomogeneous one, covering insights from – and presumably contributions to – a wide range of “fields”, technical ones and non-technical ones
  • Board: it appears questionable that this field can be considered a technical one as a whole (however, this question is not decisive)
  • Board: it is decisive whether the invention makes a technical contribution
  • Board: at least an indirect link to physical reality is required
  • Board: link can be mediated by the intended use or purpose of the invention
  • Board: automated script grading, by itself or via its intended use for evaluating linguistic competences, does not have an implied use or purpose which would be technical via any direct or indirect link with physical reality
  • Board: not inventive

Measurement for a diaper – T 2803/18 – 13 December 2022

This decision concerns an invention comprising a mathematical method. The invention includes the input of sensor signals. However, the Board decided that this was not relevant to the question of whether the non-technical features contribute to the technical character, because there is no technical interaction of the mathematical method on the output side, or no technical implementation of the mathematical method. Nevertheless, the Board considered the non-technical features in the inventive step assessment and found them obvious.

Object of the Invention

  • method for processing sensor signals representing a wetness event in an absorbent article
  • Claim 1 differs from the closest prior art in that it is comprising certain mathematical method steps (comparing vectors with representative vectors of clusters, determining the most similar, allocating the vector to a cluster, based on a mathematical model) to indicate volume of exudate in the absorbent article in a wetness event

Respondent (patent owner):

  • the mathematical method steps contribute to a technical effect
  • relying on point 99 of the Reasons in G 1/19, claim 1 was directed to an indirect measurement or at least to an accurate estimation of the exudate volume collected in an absorbent article

Board (part I):

  • claim only relates to the processing and analysis of sensor signals received from a sensor and results in a more or less accurate estimation of the volume of collected exudate
  • the results obtained by the claimed method are not necessarily more accurate, since the accuracy would depend on many factors (size of training sets, number and type of elements/variables constituting the representative vectors, etc.), none of which are defined in claim 1
  • whether the processing method in the present case may be qualified as an indirect measurement envisaged may be left undecided here, for reasons mentioned below
  • it may just be added that the determination of the volume of a single or of multiple successive wetness events does not provide any technical effect in the sense that the so determined volume necessarily affects the control of any component of the system composed, for example, of an absorbent article comprising sensors and an appropriate processor
  • further, the method does not necessarily imply any action on some other system or a modification of the operation of the system executing the claimed method going beyond the normal physical interaction between the program and the computer
  • -> absent of any technical effect

Board (part II) (assumption of a technical effect):

  • considering in favour of the respondent, that the estimation of the volume of exudate could be seen as a technical effect, to which the distinguishing feature step (mathematical method) further contributs
  • objective technical problem could only be seen in providing an alternative method of processing sensor signals representing wetness events in an absorbent article
  • irrespective of whether the processing method could be considered to involve a technical effect, the subject-matter of claim 1 lacks an inventive step in view of the obvious combination of the method known from the closest prior art with common general knowledge
  • –> 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.

In this decision T 2803/18, input data of a sensor is claimed. However, the claimed mathematical method/non-technical features do not lead to a technical effect on the output side or to a technical effect based on a technical implementation. Therefore, according to the Board, the claimed method could not be considered to involve an inventive step. However, presumably because of the sensor/ sensor signals on the input side, the Board assumed a technical effect and then examined the inventive step based on the non-technical features.

Sparsely connected neural network/MITSUBISHI – T 702/20 – 7 November 2022

In this decision, the EPO Board of Appeal provides a comprehensive technical and legal overview of a neural network “as such”.

Object of the Invention:

  • the application relates to a neural network (NN) apparatus
  • claim 1 differs from the closest prior art in that the different layers of a NN are connected in accordance with an error code check matrix

Examination Division:

  • distinguishing features do not serve a technical purpose and do not relate to a specific technical implementation
  • distinguishing features pertain to initial, fixed structural definition of an abstract mathematical neural network-like model with unknown input and output data

Appellant (part I):

  • claimed NN apparatus has a new and non-obvious structure
  • claimed NN solved a technical problem by providing effects within the computer related to the implementation of NN (storage requirements)

Board (part I):

  • the network structure only defines a class of mathematical functions which, as such, is excluded matter
  • while the storage and computational requirements are reduced in comparison with the fully-connected NN, this does not translate to a technical effect, for the simple reason that the modified NN is different and will not learn in the same way
  • the NN requires less storage, but it does not do the same thing
  • for instance, a one neuron NN requires the least storage, but it will not be able to learn any complex data relationship

Appellant (part II):

  • NN generally solve technical problems by automating human tasks
  • NN apparatuses are artificial brains and that artificial brains solve an automation problem, because they can carry out various complex tasks, instead of the human, without being programmed specifically for one task or another

Board (part II):

  • no evidence that NN functions like a human brain
  • whilst the functioning of NN may not be foreseeable prior to training and the programmer may not understand the significance of its individual parameters, the NN still operates according to the programming of its structure and learning scheme
  • the claims do not further specify any particular task, i.e. type of relationship to be learned, for the NN à NN does not solve any specific automation problem

Appellant (part III):

  • a technical problem may also be solved if the outputs of the system have an implied further technical use (G 1/19, reasons 137)

Board (part III):

  • claimed learning and use of the NN “to solve a classification problem or a regression problem” can use any data
  • outputs of the NN do not have any implied “further technical use”
  • outputs may be related to forecasting stock market evolution

Conclusion:

This decision provides a technical background regarding NN (reasons 7 to 8.2) and a legal background regarding NN (reasons 9 to 11.3), which provides a good insight into this topic.

Furthermore, 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 T 702/20 it was discussed whether the NN/ non-technical features contribute to the technical character of the invention via the output side, via the input side and via the technical implementation.