epo2day 2019 vc3 cii - e-learning€¦ · artificial intelligence and machine learning g-ii, 3.3.1...

EPO2day 2019CII – Computer Implemented InventionsEPO practice and updates to the Guidelines

Yasemin Türkeli 11 April 2019Administrator, European Patent Office

European Patent Office 2

Presenting today

AdministratorDirectorate Patent Procedures Management EPO The Hague

At the EPO since 2003

MSc. Computer Engineering

Examiner in the fields of bioinformatics and administrative, financial and commercial data processing

EQE

Yasemin Türkeli (TR)


CII – Computer Implemented Inventions

Agenda

§ Patentability requirements

§ Mathematical methods (G-II, 3.3)

§ Artificial Intelligence and Machine Learning (G-II, 3.3.1)

§ Programs for computers (G-II, 3.6 and sub-sections)

§ Schemes, rules and methods for performing mental acts(G-II, 3.5.1)

§ Schemes, rules and methods for playing games (G-II, 3.5.2)

§ Schemes, rules and methods for doing business (G-II, 3.5.3)

§ Presentations of Information and GUIs (G-II, 3.7 and 3.7.1)


Patentability: Consecutive legal requirements (G-VII,5.4)

1. Is there an invention within the meaning of Art. 52(1)?

Eliminate abstract and intellectual subject-matter

Technical character as a whole § Does the claim define or use technical means?

§ For a computer program claim, is there a further technical effect?

Requirement Test

2. Is the claimed subject matter noveland inventive?

Problem-solution approach

Features which are non-technical in isolation may produce a technical effect in the context of the claim

May be preceded by identification of technical features, selection is made with a focus on them

Non-technical features or effects may be used in the problem formulation as a constraint

Base inventive step only on features contributing to technical character

Correct identification of technical contribution of features

§ Select the closest prior art

§ Identify distinguishing features

§ Identify the technical effectsof the distinguishing features

§ Formulate the objective technical problem

§ Decide on obviousness


Which are the technical/non-technical features?

Article 52 (2) EPCThe following in particular shall not be regarded as inventionswithin the meaning of paragraph 1:(a) discoveries, scientific theories and mathematical methods;(b) aesthetic creations;(c) schemes, rules and methods for performing mental acts, playing games

or doing business, and programs for computers;(d) presentations of information.

Article 52 (3) EPCParagraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

§ Technical features = features producing a technical effect serving a technical purpose

§ The list of typical non-inventionsin Art. 52(2) EPC covers subjects whose common feature is a lackof technical character

§ The list is not exhaustive

However, the exclusions must be applied narrowly.Art. 52(3) EPC prevents a broad scope of application of the exclusion.

} Features which do contribute to producing a technical effect in the context of the invention are deemed technical even if they relate to the list of Art. 52(2) EPC



Agenda

§ Introduction








European Patent Office

7

Mathematical methods

G-II, 3.3Contribution of a mathematical feature to technical character of the invention

Features of a mathematical nature can contribute to technical character and thus inventive step in two dimensions:

§ The method serves aspecific technical purpose

§ Functional limitation (explicit or implicit) to a specific technical purpose as output with methodsteps realising that output

§ Not a generic, pro forma purpose:

• Controlling a technical system

• Controlling a robot arm

§ The design of the method specificallytakes the internal functioning of a computer into account and result in technical effects, e.g. improved processing speed

§ Mathematical steps are specificallyadapted to exploit the underlying hardware

§ No limitation to a technological field needed

Technical application Specific technical implementation

2xy3



G-II, 3.3

Examples of technical applications

§ A method for determining the number of passes by an asphalt compaction machine required to reach a desired material density by calculating the parameters of the curve in a particular manner

§ A method for classifying records comprising mathematical steps, the classified records being used in a billing procedure



G-II, 3.3

Please tick

þ yes ý no

Technical application: question

A cryptographic computation with masking operationsto protect the computation against power analysis

Does the mathematical method contribute to the technical character?

þ yes



G-II, 3.3

T 1925/11

Specific technical implementation: Example

§ A modular reduction operation on a polynomial

§ The equations used are reformulated in terms of the"word size w“ of the computer

(divisions by x(k+2w) and x(k-w))



Agenda

§ Introduction









Artificial Intelligence and Machine Learning

G-II, 3.3.1

Art. 52(2) & (3)

Art. 54 & 56


§ First Requirement – Art. 52(2) & (3)• Algorithms for classification, clustering, regression, dimensionality

reduction are abstract mathematical methods. Fact that they are trained does not change this.

• Terms like "machine" and "network" do not necessarily imply the presence of technical means.

§ Second Requirement – Art. 54 & 56• Same principles as G-II, 3.3 since AI/ML algorithms are of abstract

mathematical nature: AI and ML algorithms may contribute to technical character in the two dimensions of technical application and specific technical implementation



G-II, 3.3.1

Dimension: Technical application

Use ofNeural Networks inheart monitoring apparatus for identifying irregular heartbeats

T 598/07



G-II, 3.3.1

Dimension: Technical application

Enhanced classifier for

classification of digital images based on expanded training set

T 1286/09



G-II, 3.3.1

Dimension: Specific technical implementation

Performing- preparatoryprocessing steps in CPU and - data-intensive training steps in specialised hardware (GPU)



Agenda

§ Introduction









Programs for computers

G-II, 3.6

G 3/08, T1173/97

Technical character of a computer program

A computer program has a technical character if it producesa "further technical effect" when run on a computer:

A technical effect going beyond the normal physical interactionsbetween the program and the computer on which it is run

Circulation of electrical currents in the computeris not sufficient



G-II, 3.6

G-II, 3.6.1Technicalmethod

Control of the computer

Specific technical considerations

If the computer program specifies a method which itself producesa technical effect, e.g.

§ Controlling the anti-lock braking system

§ Determining emissions by an X-ray device

§ Compressing video

If the computer program controls the operationor functioning of the computer, e.g.

§ Processor load balancing

§ Memory management

§ Compilers or builders for processing code at low level

If the design of the program is based on specific technical considerations of the internal functioning of the computer, e.g.

§ Algorithms adapted to the underlying architecture

§ Security algorithms based on understanding of the internal functions

Examples of further technical effects



G-II, 3.6

G-II, 3.6.2

T 354/07

Information modelling

Information modelling is an intellectual activity

§ Defining a model and its components

§ Management of the model during its life cycle (versioning)

§ Purposive use of the model to solve a specific technical problem

§ Features specifying how the model is stored

Effects inherent to information models arenot technical effects (e.g. reusability,platform-independence etc.)

Non-technical unless a technical effect is produced in the context of the invention

Technical

0010110111

01001

1110101010



G-II, 3.6

G-II, 3.6.2

T 1539/09

Activity of programming, programming languages

Writing code is an intellectual activity

Non-technical unless a technical effect is produced in the context of the invention

Technical

§ Using naming conventions to facilitate understanding of the code

§ Defining a programming language with a particular syntax

§ Programming constructs producing technical effects which do not depend on how a human programmer uses the constructs

§ Features of a programming environment specifying data input mechanism enabling user to enter text, submit a command etc. (G-II, 3.7.1)

Easing the intellectual effort of the programmer is not per se a technical effect

A•



G-II, 3.6

G-II, 3.6.3Data structures

Functional data Cognitive data

Serve to control the operation of a device processing the data

§ Inherently reflect the corresponding technical features of the device

§ Contribute to producing a technical effect

Those data whose content and meaning are only relevant to human users

§ Do not normally contribute to producing a technical effect

A computer-implemented data structure embodied on a medium or as an electromagnetic carrier wave has a technical character as a whole • Invention in the sense of Article 52(1) EPC



G-II, 3.6.3

Please tick

þ yes ý no

Functional vs. cognitive data: question

An electronic message comprising:

§ content section, and

§ a header instructions which are automatically recognised and processed by the receiving message system to determine how the content is to be assembled and presented to its final recipient

Functional data?

Header information with instructions

Information in the content section

þ yes

ý no



Agenda

§ Introduction









Schemes, rules and methods for performingmental acts

G-II, 3.5.1

Mental acts

Instructions to the human mind on how to conduct cognitive, conceptual or intellectual processes

Mental act as suchMethod claim encompassesa purely mental realisationof all method steps

Not a mental act as suchMethod claim specifies theuse of technical means



G-II, 3.5.1

Criteria and Pitfalls

Suitable questions Unsuitable questions

§ Does the claim exclude a purely mental realisation of all method steps ?

§ Does the claim specify the use of technical means ?

§ Does the method provide a physical entity/product ?

§ Does the claim encompass technical embodiments ?

§ Is the method so complex that it probably requires technical means ?

§ Does the method involve technical considerations ?

If any question is answered affirmatively, no objection under Art. 52(2)(c) and (3)

Even if answered affirmatively, the claim could well fall under the exclusion of Art. 52(2)(c).

þý



G-II, 3.5.1

Please tick

þ yes ý no

Question

A method for designing a kitchen comprising :

§ obtaining a linear length of available onsite spaceusing a laser distance meter;

§ selecting furniture objects of a given width in the catalogue;

§ verifying that the sum of widths of the selected objects is lower than the obtained linear length.

Would this method be excluded as a mental act as such?

ý no



Agenda

§ Introduction









Schemes, rules and methods for playing games

G-II, 3.5.2

Rules for playing games

Rules of traditional games, e.g. board games, card games,skill games, as well as of gambling machines, video games

§ abstract or conceptual definitions of player conduct and how game evolves in response to player actions, e.g. conditions governing setup, progress, and success

§ perceived as rules by players

§ meaningful only in gaming context

Examples: rules of chess, sports, roulette and its pay-out scheme, concept of dynamic falling-blocks-puzzle (Tetris), tap-to-the-rhythm


Schemes, rules and methods for playing games

G-II, 3.5.2

Assessment of technical effects – case law

Acceptedas being technical

Not acceptedas being technical

§ Security of game machines or networked games

§ Resolving technical constraints, e.g. bandwidth, field-of-view

§ Technical efficiency and effectiveness of implementation

§ Technical mechanisms for providing input to a machine

§ Technical solution to renderinga virtual world, e.g. photorealism

§ Surprise, suspense, entertainment value, appeal

§ Fairness, balance, scoring, perceived difficulty, ease of game play

§ Business benefits, e.g. advertisement or monetization schemes

§§



Agenda

§ Introduction









Schemes, rules and methods for doing business

G-II, 3.5.3

Article 56 EPC

Examination under Article 56 EPC

§ In most business method cases, the features that contributeto the technical character of the invention are limited to those specifying a particular technical implementation

§ Features which specify a particular technical implementation are not features of the business method and have to be taken into account in the assessment of inventive step



G-II, 3.5.3

Business/administrative methods

Business person:

§ can formulate purely business or administrative matters§ cannot take any technical decisions or prescribe even

notorious technical means

Inventive step is not influenced by non-technical elements

Non-technical elements inobjective technical problemas requirements given to the skilled person

How to implement in the method of the closest prior art the non-technical requirements?

Objective technical problem



G-II, 3.5.3

technical, and have to be taken into account in the assessment of inventive step

Example of implementation choices

§ Distribution of eBooks can be done in two ways:

• by downloading the eBooks from the central server/ database directly into the terminals real-time, or

• by downloading in advance the eBooks to the local terminal of the shops

Shop 1Central server

Databasewith eBooks

Shop 2

Shop 3



G-II, 3.5.3

non-technical, and cannot support the presence of an inventive step

Example of a requirement which is a business method

§ A requirement that the eBooks offered to the customers are different for each shop

Shop 1Central server

Databasewith eBooks

Shop 2

Shop 3



Agenda

§ Introduction









Presentations of Information and GUIs

G-II, 3.7 and 3.7.1

T 336/14 and T 1802/13

Assessment of technical effects – general principles

§ A feature defining a presentation of information producesa technical effect if it

• credibly assists the user

• in performing a technical task

• by means of a continued and/or guided human-machine interaction process

§ Assistance to perform the technical task should be objectively, reliably and causally linked to the feature

§ Technical effect is not credibly achieved if depends on subjective interests or preferences of the user



G-II, 3.7 and 3.7.1

Credible technical effects?

§ Displaying an internalstate prevailing in atechnical system(dynamically changing)

§ Displaying several imagesside-by-side in low resolution and allowing selection and display of an image at higher resolution for efficient searchand retrieval of stored images

§ Displaying a notification on the computer screen near the user's current visual focus of attention

§ Displayingspecifications ofa device or staticoperating instructions

§ A lucid diagram showing properties of cars to assist the buyer in choosing a car to buy

§ Showing only urgent notifications to minimise information overload and distraction (Urgency is based on psychological factors)



G-II, 3.7 and 3.7.1

Please tick

þ yes ý no

Is there a credible technical effect?

Displaying stress values for a building in acolour coding instead of numerical values

ý no

Displaying a stream of images wherein the parametersfor delay and change in the content betweensuccessive images are computed based on physical properties of human visual perception in order toachieve a smooth transition

þ yes



G-II, 3.7 and 3.7.1

GUIs, mechanisms for user input: technical

Means for facilitating user input such as by

§ entering text

§ making a selection

§ submitting a command

A graphical shortcut allowing the user to initiate printing and setting the number of copies to be printed by a drag and reciprocated movement of a "document icon" on a "printing icon"

Performance-oriented changes to the detection of input

Achieving faster or more accurate gesture recognition

Reducing the processing load of the device when carrying out the recognition

Move 4 timesfor 4 copies


EPC Guidelines on CIIs

Index for CIIs§§


Questions

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