Tuesday, December 01, 2020 T 670/19 - Technical character of a scale for evaluating in a clinical setting

The subject of this examination decision was a scale for evaluating the lips and mouth region in a clinical setting. This type of scale could be utilized to assess the effectiveness of new lip enhancement techniques.

The claim in question, for example, features a "lip fullness scale" including images of human mouth areas.

Initially, objections were raised during examination that the claims lacked novelty. However, these objections were overcome, and the claims were then challenged for lacking technical character. The examining division argued that the claim related to purely abstract subject matter and thus did not meet the requirements of Article 52(2) and (3) of the European Patent Convention (EPC).

The Board of Appeal did not concur with this argument and found that the illustrations indicated a physical representation and thus had technical character. As a result, the case was remitted.

Wednesday, March 06, 2019 T 489/14 - New referral on computer-implemented simulations

In the present case, the Board was faced with discussing inventive step of a computer-implemented simulation of pedestrian crowd movement in an environment. The Board tended to consider the invention to lack inventive step over a known general-purpose computer. However, the appellant argued that modelling pedestrian crowd movement in an environment constituted an adequately defined technical purpose for a computer-implemented method. The Board discussed case law relating to  the requirement of a direct link with physical reality, to simulations and to designs, and then decided to refer three questions to the Enlarged Board:

1. In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation's implementation on a computer, if the computer-implemented simulation is claimed as such?

2. If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?

3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?

Friday, February 22, 2019 T 2050/07 - Distinguishing feature is mathematical but still inventive

If the entire contribution of your claim to the state of the art is contained in the mathematics can you be novel and inventive? In this case, the only relevant prior art was a 54(3) document, which did not disclose all of the mathematics but did disclose all of the rest. 

In this case the claim concerned "a method of analyzing a DNA sample that contains genetic material". The method contained technical steps such as amplifying a DNA sample, and producing a signal comprising signal peaks from each allele. However such steps where considered to be comprised in the Art. 54(3) prior art. 

The claim also contains a number of mathematical steps that result in a mathematical result: "a probability distribution of genotype likelihood or weight in the DNA sample". These were not disclosed in the prior art. 

The board muses that "The argument could be made that the distinguishing features described above are of non-technical nature as being a mathematical method or a method for performing mental activities, and that, in view of the established case law according to which features that do not contribute to the technical character of an invention and do not interact with the technical subject-matter of the claim for solving a technical problem, have to be ignored when assessing inventive step, such features should equally be ignored when assessing novelty. (...)". However, "the distinguishing features constitute a means for improving the confidence of the genotype estimate of the quantitative method analysis", and thus they "contribute to the technical character of the claimed invention".

Tuesday, April 26, 2016 T 651/12 - To display information in an ergonomically improved manner is a technical purpose

The Examining Division considered the subject-matter of claim 1 according to the main request to lack an inventive step and refused an application. The Examining Division reasoned that the claim was made up of technical and non-technical features, the technical features merely defining a commonplace map display apparatus and the non-technical features defining a method defining an abstract calculation on the basis of modelled map data. The applicant appealed, arguing that the claim features were technical as was the problem solved.
According to the Board's opinion, a map display apparatus and method explicitly comprising, after the calculation of the three-dimensional bird's eye view map, displaying this map on the screen, would provide a more realistic view of the road to the user and support the user in better orienting himself. This would be considered to be a technical solution to a technical problem: the outcome of the calculation is used for a technical purpose, namely to display information in an ergonomically improved manner (r.3.2). Also the calculation as such has in the board's judgement clear technical aspects (r 3.3).

Tuesday, January 05, 2016 T 336/14 - Providing instructions with a device

No instructions were provided with this blood orange

This opposition appeal concerns a blood treatment machine which is distinguished from the prior art by displaying "operating instructions for readying the machine for use" and at least two "pictographs which represent configurations of the machine correlated to the operating instructions".

These features are on the one hand presentation of information but on the other hand are related to technical interaction with a machine. Unfortunately for the proprietor these technical aspects do not save his claim. 

I find the discussion also interesting because the claim is close to claim 3 of EQE Paper C of 2008 (pdf). Already then candidates who wanted to become an attorney had to argue that providing novel instructions together with a device does not render the claim inventive. Nevertheless, so many years later the discussion of this problem by the board shows that this question is not as straightforward as might at first glance seem.

Tuesday, September 29, 2015 T 1461/12 - Inventive step for "mixed inventions"

After a refusal of an application for lack of inventive step based on the approach of T 641/00 (COMVIK), the applicant criticized tat approach in appeal. Assessment of claims involving technical as well as non-technical features, inclusion of non-technical aims as constraints to be met in the problem statement, and earlier case law are addressed in detail in the decision.