EPO2day 2019 CII – Computer Implemented Inventions EPO practice and updates to the Guidelines Yasemin Türkeli Administrator, European Patent Office 11 April 2019
Presenting today Yasemin Türkeli (TR) 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 European Patent Office 2
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) European Patent Office 3
Patentability: Consecutive legal requirements (G-VII,5.4) Requirement Test 1. Is there an invention within the § Does the claim define or use technical Technical character as a whole meaning of Art. 52(1)? means ? § For a computer program claim, is there Eliminate abstract and intellectual subject- a further technical effect ? matter 2. Is the claimed subject matter novel Problem-solution approach and inventive? May be preceded by identification of technical features, selection is made with § Select the closest prior art a focus on them § Identify distinguishing features Base inventive step only on features contributing to Features which are non-technical in technical character § Identify the technical effects isolation may produce a technical effect in of the distinguishing features the context of the claim Correct identification of technical contribution of Non-technical features or effects may be § Formulate the objective features used in the problem formulation as a technical problem constraint § Decide on obviousness European Patent Office 4
Which are the technical/non-technical features? § Technical features = features Article 52 (2) EPC The following in particular shall not be regarded as inventions producing a technical effect serving within the meaning of paragraph 1: a technical purpose (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; § The list of typical non-inventions (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; in Art. 52(2) EPC covers subjects (d) presentations of information. whose common feature is a lack Article 52 (3) EPC of technical character 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 § The list is not exhaustive or European patent relates to such subject-matter or activities as such. 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 European Patent Office 5
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) European Patent Office 6
Mathematical methods G-II, 3.3 Contribution of a mathematical feature 2x y 3 to technical character of the invention Features of a mathematical nature can contribute to technical character and thus inventive step in two dimensions: Technical application Specific technical implementation § The method serves a § The design of the method specifically takes the internal functioning of a specific technical purpose computer into account and result in § Functional limitation (explicit or technical effects, e.g. improved implicit) to a specific technical processing speed purpose as output with method § Mathematical steps are specifically steps realising that output adapted to exploit the underlying § Not a generic, pro forma purpose: hardware • Controlling a technical system § No limitation to a technological field needed • Controlling a robot arm 7 European Patent Office
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 European Patent Office 8
Mathematical methods G-II, 3.3 Technical application: question A cryptographic computation with masking operations Please tick to protect the computation against power analysis yes � no � Does the mathematical method contribute to the technical character? � yes European Patent Office 9
Mathematical methods G-II, 3.3 Specific technical implementation: Example § A modular reduction operation on T 1925/11 a polynomial § The equations used are reformulated in terms of the "word size w“ of the computer (divisions by x (k+2 w ) and x (k- w ) ) European Patent Office 10
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) European Patent Office 11
Artificial Intelligence and Machine Learning G-II, 3.3.1 Artificial Intelligence and Machine Learning § First Requirement – Art. 52(2) & (3) 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 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 European Patent Office 12
Artificial Intelligence and Machine Learning G-II, 3.3.1 Dimension: Technical application T 598/07 Use of Neural Networks in heart monitoring apparatus for identifying irregular heartbeats European Patent Office 13
Artificial Intelligence and Machine Learning G-II, 3.3.1 Dimension: Technical application Enhanced T 1286/09 classifier for classification of digital images based on expanded training set European Patent Office 14
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) European Patent Office 15
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) European Patent Office 16
Programs for computers G-II, 3.6 Technical character of a computer program A computer program has a technical character if it produces G 3/08, T1173/97 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 European Patent Office 17
Programs for computers G-II, 3.6 Examples of further technical effects Technical Control of the Specific technical G-II, 3.6.1 method computer considerations If the computer program If the computer program If the design of the specifies a method controls the operation program is based on which itself produces or functioning of the specific technical a technical effect, e.g. computer, e.g. considerations of the internal functioning of § Controlling the anti-lock § Processor load the computer, e.g. braking system balancing § Algorithms adapted to § Determining emissions § Memory management the underlying by an X-ray device § Compilers or builders architecture § Compressing video for processing code at § Security algorithms low level based on understanding of the internal functions European Patent Office 18
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