Author: Michael Schüller

Michael Schüller is partner at Winter, Brandl - Partnerschaft mbB. As (German) Patent Attorney and European Patent and Trademark Attorney, he supports clients in the field of mechanical engineering.

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The Unified Patent Court (UPC) Agreement is approved by the German Bundestag – What are the next steps?

2020年11月26日、ベルリンにあるドイツ連邦議会（Bundestag）は、UPC協定を承認しました。これは、統一特許パッケージの実施に向けた重要な一歩となります。統一特許制度は、2022年春に開始される予定です。しかしながらまだいくつかのステップを乗り越えなければなりません。

The previous approval in the German Bundestag was unconstitutional

On March 10, 2017, the German Bundestag already approved the UPC Agreement. However, on March 31, 2017, a constitutional complaint was filed with the German Constitutional Court. Therefore, the ratification process of the Unified Patent System was stopped by Germany. On February 13, 2020, the Constitutional Court decided inter alia that in the vote in the German Bundestag the 2/3 majority was missing. After this decision of the Constitutional Court, the German Bundestag approved a new, unchanged bill on the UPC Agreement with a sufficient majority on November 26, 2020.

Besides the UPC Agreement, the German Bundestag adopts a protocol on provisional applicability

In addition to the UPC Agreement, the German Bundestag also approved a protocol on provisional applicability on November 26, 2020. With this protocol, it is possible that the Preparatory Committee of the Unified Patent System can appoint judges for the UPC, rent office space, etc. before the certificate of ratification is deposited by Germany.

In the next step, the German Bundesrat (Federal Council) has to approve the UPC Agreement

In Germany besides the Bundestag also the Bundesrat has to approve the UPC Agreement. The vote on this will take place on December 18, 2020. The approval of the UPC agreement in the Bundesrat is very likely since the same parties have a majority in the Bundesrat as in the Bundestag. Afterward a countersignature by the Federal Government and the German President takes place. In the end the approval is published in the German Federal Law Gazette. Then, the certificate of ratification is ready to be deposited by Germany.

The Central Divisions of the UPC will be located in Munich and Paris

Since the UK is going to leave the European Union on January 1, 2021, the UK is not part of the Unified Patent System and London will no longer be a location for the UPC Central Divisions. Therefore, the Central Divisions of the UPC will be located in Munich and Paris. 

Summary of the important next steps

  • On December 18, 2020, the German Bundesrat will probably approve the UPC Agreement.
  • Then, the protocol on provisional applicability will be deposited by Germany (probably spring 2021).
  • After that, the Preparatory Committee of the Unified Patent System will appoint judges, rent office space, buy furniture, etc.
  • Germany will deposit the certificate of ratification after the preparation of the Preparatory Committee (probably end of 2021).
  • Expected start of the Unified Patent System is in spring 2022.

Information of the German Bundestag:
https://www.bundestag.de/dokumente/textarchiv/2020/kw48-de-patentgericht-808180

Information of the European Patent Office:
https://www.epo.org/news-events/news/2020/20201126b.html

WINTER BRANDL Partnerschaft mbB, Patent Attorney Michael Schüller, Munich

Michael Schüller

7.12.2020

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European Patent and Trademark Attorney



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EPO Board of Appeal (BoA) comments on sufficiency of disclosure of training data for an artificial neural network

  1. The present invention, which is based on machine learning in particular in connection with an artificial neural network, is not sufficiently disclosed, since the training of the artificial neural network in accordance with the invention cannot be carried out for lack of disclosure
  2. Since, in the present case, the claimed method differs from the prior art only by an artificial neural network, the training of which is not disclosed in detail, the use of the artificial neural network does not lead to a specific technical effect which could give rise to inventive step. (Guidelines of the BoA)

BoA, Decision from May 12, 2020 – T 0161/18 – Method for determining cardiac output; EPC Art. 83, 56

The subject matter of the patent application in suit is the use of an artificial neural network to transform a blood pressure curve

The appellant is an applicant for a European patent application (No. 06804383.5). The invention concerns, inter alia, a method for determining cardiac output. For this purpose, the blood pressure of a person is first recorded as a blood pressure curve. The person’s blood pressure is taken from an upper arm of the person via a cuff 2, see below copied Fig. 1. Via a line 3, the blood pressure is led from the cuff 2 to a device 1 with a computing unit.

The copied Fig. 2 above shows the process sequence on the computing unit. It shows the blood pressure curve 7 which was recorded via the cuff 2. With the aid of an artificial neural network 8, the blood pressure curve 7 is transformed into an equivalent aortic pressure 9. From this, the cardiac output 11 is then calculated with the aid of an optimization model 10. The neural network 8 has weight values. These are determined by learning.

The Examining Division rejected the present patent application, since the above explained method is not inventive. The appellant objects to this in her appeal.

The BoA considers the invention not sufficiently disclosed

The BoA takes a position with regard to the claimed training of the neural network 8, see Fig. 2. According to the BoA, the patent application merely discloses that the input data for the training should cover a wide range of patients of different age, sex, etc. However, according to the BoA, the patent application does not disclose which input data are suitable for training the neural network 8. Neither does the patent application disclose at least one suitable set of training data. Thus, the training of the neural network 8 cannot be post-processed by the skilled person. The invention is thus not sufficiently disclosed.

The appeal is rejected by the BoA on the grounds of insufficient disclosure, among others.

Training data should at least under certain circumstances be disclosed in the patent application

In the present patent application, the process and device claim claimed that the weight values of the neural network are determined by learning. In order to avoid the ground for refusal on insufficiency of disclosure in this case, the input data for the training and at least one training data set should be disclosed in the patent description.

WINTER BRANDL Partnerschaft mbB, Patent Attorney Michael Schüller

Michael Schüller

10.09.2020

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European Patent and Trademark Attorney



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German Federal Court of Justice (FCJ) confirms its previous practice regarding the presentation of information

表示されたメニュー項目およびさらなる項目が選択可能であることを示すフィールドを特に明確に表示することのみを目的とした画面上の選択メニュー の表示タイプを選択する指示は、技術的な解決手段には関係なく、したがって、進歩性の審査には考慮されない（BGH, GRUR 2015, 660 – BildstromおよびBGH, GRUR 2015, 1184 – Entsperrbildの肯定）。

The instruction to select a display mode for a selection menu on a screen which serves the sole purpose of presenting the menu items displayed and the fact that there may be further items available in a particularly clear manner does not concern a technical means for solving the technical problem and therefore is not to be taken into account in the examination as to inventive step (confirmation by FCJ, GRUR 2015, 660 – Image Stream (Bildstrom); FCJ, GRUR 2015, 1184 – Unlocking Picture (Entsperrbild)). (headnotes of the court)

FCJ, judgement from January, 14 2020 – X ZR 144/17 – Rotating Menu (Rotierendes Menü); EPC Art. 52 II lit. d

The subject matter of the patent in suit is a screen which displays a rotating menu

The defendant is the proprietor of the patent in suit which is the subject of a nullity suit. The patent concerns an electronic device with at least one display 1, see the copied figure 1 below. Display 1 represents a menu 2 which can be rotated by a user. Some of the menu items in menu 2 are outside the display 1. Menu items outside display 1 can be rotated into display 1 if necessary, and menu items inside display 1 can be rotated out. The German Federal Patent Court has deemed the patent in dispute to be not patentable and has declared it invalid in its entirety. The defendant is appealing against this decision.

Features not taken into account in the assessment of inventive step

The feature in claim 1 of the patent in suit, that menu 2 is rotating, is not taken into account by the FCJ when assessing inventive step. According to the FCJ, this feature does not allow a more efficient use of the available display area. It merely serves the purpose of presenting the displayed menu items and the fact that there may be other items available in a particularly clear manner. Thus, only the human imagination is taken into account. According to the case law of the Senate, this does not constitute a technical means for solving the technical problem (FCJ, GRUR 2015, 1184, para. 21 – Unlocking Picture; FCJ, judgement of 26 February 2015 – X ZR 37/13, GRUR 2015, 660 para. 31 et seq. – Image Stream). Thus, the described feature is not taken into account when assessing inventive step.

Further features regarding the menu are considered

In contrast to the feature that menu 2 is rotating, other features in claim 1 of the patent in suit concerning menu 2 are taken into account by the FCJ when assessing inventive step. For example:

  • Menu 2 comprises a number of menu items,
  • Menu 2 is provided on the display outside the centre,
  • without changing the format of menu 2, any number of items can be added to menu 2.

According to the FCJ, these features have the function of using a spatially limited display area for the display of information. The information cannot be displayed all at once due to its size and format. This technical problem is solved, according to the mentioned features, by a certain spatial arrangement of the displayed information. This is not only an appropriate and easily understandable presentation of the information, but also a technical solvent, namely an appropriate use of the available screen area. Thus, these features are taken into account by the FCJ when assessing inventive step.

The decision of the Federal Patent Court is confirmed by the FCJ, since the claimed subject matter is not inventive.

Helpful indications of purpose in the patent

The features of menu 2, which were taken into account in the assessment of inventive step, fulfil a technical purpose: they lead to a better exploitation of the display 1. The feature relating to the rotatability of menu 2 only leads to a particularly clear presentation of the menu items. Thus, this feature does not take into account the physical conditions of human perception and reception of information. If this were the case, this feature should have been taken into account. Such features can be found, for example, in the subject matter of the judgment in the case FCJ, GRUR 2015, 660 – Image Stream. In this case, a certain presentation of information leads to a user being able to grasp the information quickly and efficiently. It is possible that such a purpose statement in the patent in dispute in the present case would have led to a consideration of the feature regarding the rotatable menu 2 in the inventive step considerations. Of course, only if this purpose would have been technically correct.

Michael Schüller

20.08.2020

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Patent Attorney
European Patent and Trademark Attorney



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