Tag: intended use – no

Translating natural languages/SYSTRAN – T 1177/97 – 9 July 2002

This decision concerns the technical nature of information. This can have a technical character if:

– it is used in or intended for use in a technical system,

– if it reflects the properties of the technical system.

Object of the Invention:

  • automatic search in dictionaries with a character-by-character process that cuts off the characters from the end of the word until a valid combination of stem and ending is found to achieve the longest match
  • Claim 1 differs from the closest prior art (general purpose computer) in that it comprises a low frequency dictionary look-up process on the basis of the socalled “longest match principle“, meaning a look-up process which produces the dictionary entry with the longest stem matching the source text word

Board I (inventive step)

  • 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, for instance by being specifically formatted and/or processed
  • such information when used in or processed by the technical system may be part of a technical solution to a technical problem and form the basis for a technical contribution of the invention to the prior art

Board II (inventive step)

  • the use of a low frequency dictionary and an algorithm of sequentially dropping letters as part of the matching process may be regarded as the result of a specific adaptation of the translation process for computer implementation –> in principle as technical components of the claimed invention
  • the application of the “longest match principle” is in substance based on linguistic considerations
  • applying the principles laid down by the Board in its COMVIK-decision, the decision for one or the other matching principle (“longest match principle”, “shortest-matching method”) does not seem to solve any technical problem and hence does not fall within the responsibility of a technically skilled person
  • it is rather a non-technical constraint determined by the linguistic expert and given to the skilled person as part of the framework of his task, namely implementing the known low frequency dictionary look-up process by applying the “longest match principle”

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

Estimating airborne photovoltaic energy production/BOEING – T 1035/18 – 2 November 2021

This EPO’s Board of Appeal decision concerns a method for estimating energy savings due to solar cells on an aeroplane. The features of the method do not make a technical contribution, in particular since no further technical use is (implicitly) claimed for the determined energy savings.

Object of the Invention

  • estimating the electrical energy production of a photovoltaic system of an aircraft in flight

Appellant (part I):

  • method steps simulated the performance of a photovoltaic system under realistic conditions

Board (part I):

  • whether a simulation contributes to the technical character does not depend on the degree to which the simulation represents reality (G1/19, point 111)
  • nor does it depend on the technicality of the simulated system (G1/19, point 120)
  • whether the simulation achieves a technical effect depends on the further use of the numerical data of the simulation (G 1/19, point 124)

Appellant (part II):

  • technical effect is the further use of the predicted amount of electrical energy, namely translating this amount into estimated fuel savings
  • estimating the savings in pounds of fuel, i.e. in terms of weight, was a technical feature

Board (part II):

  • estimating the fuel savings for a flight is a nontechnical administrative activity

Appellant (part III):

  • estimated fuel savings imply a more precise estimation of the amount of fuel needed by the aircraft for a flight
  • this is a technical effect because refuelling the aircraft with the optimal amount of fuel would enable the aircraft to traverse the flight path more efficiently

Board (part III):

  • refuelling is a technical process, but it is not a direct consequence of the estimated fuel savings but would only occur as a result of a human decision (see also G 1/19, point 123)
  • the estimated fuel savings can also be used for business decisions, such as whether the savings merit the production and installation of the photovoltaic system or whether they permit a reduction of the flight tickets’ prices
  • the estimations do not have an implied technical use that can be the basis for an implied technical effect (see also G 1/19, points 98, 128)

Appellant (part IV):

  • subject matter describes accurate model for predicting the solar irradiance at a plurality of geographical points
  • the accurate model led to a more precise estimation of the fuel savings
  • according to G 1/19, point 111, the accuracy of a simulation might be taken into consideration in the assessment of inventive step

Board (part IV):

  • the simulation’s accuracy might play a role in the assessment of inventive step only if the simulation contributes to the technical character of the invention

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 1035/18 the software/ non-technical features do not contribute to the technical character of the invention via the output data. Therefore, the non-technical features are not considered for the assessment of inventive step.

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.

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

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.