The bar for patenting software is generally higher than for traditional technology. This is mainly due to the fact that “programs for computers” and “mathematical methods” are not considered to be inventions under a legal provision in the European Patent Convention (EPC). This is the intention of the legislator and a political decision. Nevertheless, it is possible to patent software. This whitepaper provides an insight into how software respectively computer-implemented inventions (CII) are dealt with at the European Patent Office (EPO). The information is mainly based on the decision G1/19 of the EPO’s Enlarged Board of Appeal issued 2021. This decision is an all-out attack on CII and provides a good basis for an inside view into the software patenting at the EPO.
The Enlarged Board of Appeal of the European Patent Office discussed older case law in its decision G 1/19 about computer implemented inventions, including decision T 1351/04. This decision is discussed with respect to “data intended for controlling a technical device”. According to G1/19 this data may be considered to have technical character because it has the potential to cause technical effects. In the following, we will take a closer look at this relevant decision T 1351/04.
The appeal in the case T 1351/04 is against the decision of the examining division to refuse the European patent application No. 02 258 100.3.
Subject matter of the application in suit
The claimed subject matter is in regard to create a specific index-file from a csv-file (e.g. an Excel-file). By employing the index-file, it is possible to significantly increase the speed of data extraction from a large-size csv-file. In the figure 1 below, you can see an example of the csv-file (on the right hand) and of the index-file (on the left hand).
For the claimed subject matter, the csv-file requires records containing fields forming different hierarchical levels, see figure 1 above on right hand side (top hierarchical level, lower hierarchical level). The index-file is in principle built as a tree structure. This means, in the index-file information of the csv-file are connected/arranged in a tree structure. This looks schematically as follows in figure 2:
Because the records in the index-file (based on the csv-file) are arranged in the tree structure, the respective record is called a “node”. When you look in figure 1 right hand, you can see that in the csv-file there are records like “COOLING AND HEATING” and “HOUSEWORK” as the top hierarchical level. Depending on these there are further records respectively. The hierarchical records in a row of the csv-file are key character strings. The hierarchical record of the csv-file is mapped in the tree structure of the index-file. At each node there is also so-called management information, which includes information about the starting position and the number of corresponding records in the csv-file to be searched. This information permits the desired records of the csv-file to be retrieved directly when the node having the desired key character string has been found (cf para.  of the description). When only keys of high-level nodes are used it is thus not necessary to follow the tree structure all the way down to the leaf nodes in order to retrieve the desired record information.
In other words, the hierarchical structure of the csv-file is transformed in the tree structure of the index-file, wherein addition information like starting position and number of corresponding records are stored. With this arrangement information of the csv-file can be retrieved by the index-file faster.
Is the subject matter of the application technical?
Yes, since the claimed method requires the use of a computer.
Features of the subject matter contributing to the technical solution of a technical problem
To assess the inventive step it must first be considered in how far the features of the claim contribute to the solution of a technical problem. The board took a look at the following feature since it is a distinguishing feature over the prior art:
“each node in the index includes the starting position information and number information used for retrieving records”.
As mentioned above, these features are part of the index-file and are called management information.
According to the description of the present application, the invention relates to a method for “promptly searching for and extracting data from a file” (cf paragraph ). The data searched for can be of any kind, eg of a commercial nature as in the described embodiment, and thus have no technical relevance in themselves.
The data are stored as records having certain “start positions“, ie memory addresses in the file to be searched. The computer reads these addresses in the form of the “management information” in the index-file and retrieves the associated data from the csv-file to be searched. The management information thus controls the computer by directing it to a certain memory location.
Functional data, intended for controlling a technical device, are normally regarded as having technical character. The management information contained in the present claims should be regarded as contributing to the technical character of the search method according to the Board of Appeal.
It follows that the mentioned feature that has a direct bearing on how the search is conducted should be considered for inventive step.
Is the data decisive?
Further, in the decision the BoA refers to the decision T 52/85. This seems to suggest that as long as a claimed method for searching a data file is concerned with the way a computer performs the search, it may be technical. If however the kind of data is decisive, the method’s contribution is nontechnical (cf T 52/85, point 5.2). As noted above, in the present case the kind of data searched for is of no importance.
In order to support possible argumentation of the technical character of claimed subject matter comprising “functional data” it would be beneficial, when the functional data is not only disclosed in a abstract manner but also in regard to the machine-level of the computer. E.g. as mentioned above it could be disclosed that the management information controls the computer by directing it to a certain memory location.
Claim 2 of the main request in the appeal:
A computer-executable file search method for searching a file to be searched (3),
said file to be searched (3) including records having fields allocated to each of a plurality of hierarchical levels and being constructed so that records having the same key character string in a field at the same hierarchical level are arranged in series and wherein for each record, the first field is the top hierarchical level, and subsequent fields form lower hierarchical levels,
the method comprising computer-executed steps of:
- creating (S3) an index file (5) using the method of claim 1;
- accepting (S5, S6; S10, S11)) an instruction to search for data relating to a specified key character string over said file to be searched (3), the instruction including selection of either a data extraction output or a drill-down business form output;
- retrieving (S7; S12, S13) from said index file (5) management information about one or more records related to the specified key character string on said file to be searched;
- extracting (S8; S14) data of the one or more records from said file to be searched (3); and
- outputting (S9) the extracted data;
wherein the retrieving and extracting steps comprise
when the data extraction output is selected, retrieving (S7) start position information and number information as management information about records related to the specified key character string and extracting (S8) data of a number of records specified by the number information from a position specified by the start position information;
and when the drill-down business form output is selected, retrieving (S12, S13), based on the pointer, a start position of a record of the node management information of the lower hierarchical level, and extracting (S14) data of the record based on the retrieved start position of the record.
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- 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
- 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
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.