EPO2day 2019 CII Computer Implemented Inventions EPO practice and - - PowerPoint PPT Presentation

EPO2day 2019

CII – Computer Implemented Inventions EPO practice and updates to the Guidelines

Yasemin Türkeli 11 April 2019 Administrator, European Patent Office

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Presenting today

Administrator Directorate 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)

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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)

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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 novel

and 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 effects

• f the distinguishing features

§ Formulate the objective technical problem § Decide on obviousness

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Which are the technical/non-technical features?

Article 52 (2) EPC The following in particular shall not be regarded as inventions within 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

• r doing business, and programs for computers;

(d) presentations of information. Article 52 (3) EPC Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application

• r 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-inventions in Art. 52(2) EPC covers subjects whose common feature is a lack

• f 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

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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Mathematical methods

G-II, 3.3

Contribution 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 a specific technical purpose § Functional limitation (explicit or implicit) to a specific technical purpose as output with method steps realising that output § Not a generic, pro forma purpose:

• Controlling a technical system
• Controlling a robot arm

§ The design of the method specifically takes the internal functioning of a computer into account and result in technical effects, e.g. improved processing speed § Mathematical steps are specifically adapted to exploit the underlying hardware § No limitation to a technological field needed

Technical application Specific technical implementation

2x

y3

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Mathematical methods

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

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Mathematical methods

G-II, 3.3 Please tick

• yes

no

Technical application: question A cryptographic computation with masking operations to protect the computation against power analysis Does the mathematical method contribute to the technical character?

• yes

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Mathematical methods

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))

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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Artificial Intelligence and Machine Learning

G-II, 3.3.1

• Art. 52(2) & (3)
• Art. 54 & 56

Artificial Intelligence and Machine Learning

§ 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

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Artificial Intelligence and Machine Learning

G-II, 3.3.1

Dimension: Technical application Use of Neural Networks in heart monitoring apparatus for identifying irregular heartbeats

T 598/07

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Artificial Intelligence and Machine Learning

G-II, 3.3.1

Dimension: Technical application Enhanced classifier for classification of digital images based on expanded training set

T 1286/09

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Artificial Intelligence and Machine Learning

G-II, 3.3.1

Dimension: Specific technical implementation Performing

• preparatory

processing steps in CPU and

• data-intensive

training steps in specialised hardware (GPU)

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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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 produces a "further technical effect" when run on a computer: A technical effect going beyond the normal physical interactions between the program and the computer on which it is run Circulation of electrical currents in the computer is not sufficient

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Programs for computers

G-II, 3.6 G-II, 3.6.1 Technical method Control of the computer Specific technical considerations

If the computer program specifies a method which itself produces a 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 operation

• r 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

• f the internal functions

Examples of further technical effects

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Programs for computers

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 are not technical effects (e.g. reusability, platform-independence etc.) Non-technical unless a technical effect is produced in the context of the invention Technical

00101 10111 01001 11101 01010

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Programs for computers

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

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Programs for computers

G-II, 3.6 G-II, 3.6.3

Data structures Functional data Cognitive data

Serve to control the operation

• f 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

• r as an electromagnetic carrier wave has a technical character

as a whole • Invention in the sense of Article 52(1) EPC

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Programs for computers

G-II, 3.6.3 Please tick

• yes

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

• yes
• no

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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Schemes, rules and methods for performing mental 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 such Method claim encompasses a purely mental realisation

• f all method steps

Not a mental act as such Method claim specifies the use of technical means

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Schemes, rules and methods for performing mental acts

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

• f 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).

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Schemes, rules and methods for performing mental acts

G-II, 3.5.1 Please tick

• yes

no

Question A method for designing a kitchen comprising : § obtaining a linear length of available onsite space using 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?

• no

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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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

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Schemes, rules and methods for playing games

G-II, 3.5.2

Assessment of technical effects – case law Accepted as being technical Not accepted as 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 rendering a 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

§§

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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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 contribute to 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

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Schemes, rules and methods for doing business

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 in

• bjective technical problem

as requirements given to the skilled person How to implement in the method of the closest prior art the non-technical requirements? Objective technical problem

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Schemes, rules and methods for doing business

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 1 Central server Database with eBooks Shop 2 Shop 3

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Schemes, rules and methods for doing business

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 1 Central server Database with eBooks Shop 2 Shop 3

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CII – Computer Implemented Inventions

Agenda § Introduction § 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)

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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 produces a 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

• bjectively, reliably and causally linked to the feature

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

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Presentations of Information and GUIs

G-II, 3.7 and 3.7.1

Credible technical effects?

§ Displaying an internal state prevailing in a technical system (dynamically changing) § Displaying several images side-by-side in low resolution and allowing selection and display of an image at higher resolution for efficient search and retrieval of stored images § Displaying a notification on the computer screen near the user's current visual focus of attention § Displaying specifications of a device or static

• perating 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

• n psychological factors)

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Presentations of Information and GUIs

G-II, 3.7 and 3.7.1 Please tick

• yes

no

Is there a credible technical effect? Displaying stress values for a building in a colour coding instead of numerical values

• no

Displaying a stream of images wherein the parameters for delay and change in the content between successive images are computed based on physical properties of human visual perception in order to achieve a smooth transition

• yes

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Presentations of Information and GUIs

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 times for 4 copies

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EPC Guidelines on CIIs

Index for CIIs

§§

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Questions

Question & answer session

via chat to "All Panelists" now later Questions via mail Ł academy@epo.org