G-II 5.4.2 Essentially biological processes for the production of plants or animals
However, if a process of sexual crossing and selection includes within it an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then such a process is not excluded from patentability under Art. 53(b) but qualifies as a potentially patentable technical teaching (see G 1/08, G 2/07).
Genetic engineering techniques applied to plants which techniques differ profoundly from conventional breeding techniques as they work primarily through the purposeful insertion and/or modification of one or more genes in a plant, are patentable (see T 356/93). However, in such cases the claims should not, explicitly or implicitly, include the sexual crossing and selection process.
Processes for selecting plants or animals using genetic molecular markers without crossing the plants or animals are not excluded from patentability. Technical means, such as genetic molecular markers, used in such processes are not excluded, either.
A process for producing triploid seedless melon fruit which involves the pollination of sterile female flowers of a triploid plant, unable to carry out successful meiosis, with pollen of the diploid polliniser plant and which therefore does not concern sexually crossing two whole genomes of plants (implying meiosis and fertilisation) and the subsequent selection of plants is not an essentially biological process and is hence not excluded from patentability (T 1729/06).
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G-VI 7.1.4 Surgical uses pursuant to Art. 54(5)
If the independent claim is directed to a composition, the definition of the composition may be inserted before or after the term “for use”.
G-VII 5.4.2 Examples of applying the steps listed in G‑VII, 5.4
5.4.2.1 Example 1
This example is adapted from T 1670/07 and T 279/05.
Claim 1:
Method of facilitating shopping on a mobile device wherein:
(a) the user selects two or more products to be purchased;
(b) the mobile device transmits the selected products data and the device location to a server;
(c) the server accesses a database of vendors to identify vendors offering at least one of the selected products;
(d) the server determines, on the basis of the device location and the identified vendors, an optimal shopping tour for purchasing the selected products by accessing a cache memory in which optimal shopping tours determined for previous requests are stored; and
(e) the server transmits the optimal shopping tour to the mobile device for displaying.
Step (i): The features contributing to the technical character are prima facie identified as a distributed system comprising a mobile device connected to a server computer which has a cache memory and is connected to a database.
Step (ii): Document D1, which discloses a method for facilitating shopping on a mobile device wherein the user selects a single product and the server determines from a database the vendor selling the selected product nearest to the user and transmits this information to the mobile device, is selected as the closest prior art.
Step (iii): The differences between the subject-matter of claim 1 and D1 are:
(1) The user can select two or more products to purchase (instead of a single product only).
(2) An “optimal shopping tour” for purchasing the two or more products is provided to the user.
(3) The optimal shopping tour is determined by the server by accessing a cache memory in which optimal shopping tours determined for previous requests are stored.
Differences (1) and (2) represent modifications of the underlying business concept, since they define producing an ordered list of shops to visit which sell these products. No technical purpose is served, and no technical effects can be identified from these differences. Hence, these features make no technical contribution over D1. On the other hand, difference (3) makes a technical contribution as it relates to the technical implementation of differences (1) and (2) and has the technical effect of enabling rapid determination of the optimal shopping tour by accessing previous requests which are stored in a cache memory.
Step (iii)(c): The objective technical problem is to be formulated from the perspective of the person skilled in the art as an expert in a technical field (G-VII, 3). Such a person is not deemed to have any expertise in business-related matters. In the present case, he can be defined as an expert in information technology who gains knowledge of the business-related features (1) and (2) as part of the formulation of the technical problem to be solved, as would be the case in a realistic situation in the form of a requirement specification. The objective technical problem is thus formulated as how to modify the method of D1 to implement in a technically efficient manner the non-technical business concept defined by the differences (1) and (2), which is given as a constraint to be met.
Obviousness: Following requirement (1), it would have been a matter of routine for the skilled person to adapt the mobile device used in D1 so as to enable the user to select two or more products instead of a single one. It would also have been obvious to assign the task of determining the optimal shopping tour (arising from requirement (2)) to the server, by analogy with the server likewise determining the nearest vendor in D1. Since the objective technical problem further requires a technically efficient implementation, the skilled person would have looked for efficient technical implementations of the determination of a tour. A second document D2 discloses a travel planning system for determining travel trips, listing a set of places to visit, and addresses this technical problem: the system of D2 accesses for this purpose a cache memory storing results of previous queries. The skilled person would thus have considered the teaching of D2 and adapted the server in D1 to access and use a cache memory as suggested in D2 so as to provide a technically efficient implementation of the determination of the optimal shopping tour, i.e. difference (3). Hence, no inventive step is involved in the sense of Art. 52(1) and Art. 56.
Remarks: The example shows a typical application of the approach developed in T 641/00 (COMVIK). The analysis of technical effects is performed in detail at step (iii) to see if the differences from the closest prior art comprise features making a technical contribution. This analysis refines the initial finding of step (i) by identifying the feature of accessing the cache memory for results of previous requests in the step of determining the tour as a technical feature. Note that in this case step (i) would not need to be indicated explicitly in the reasoning. In step (iii)(c), the non-technical modifications to the business concept are given to the skilled person as a constraint to be met. Whether or not the new business concept is innovative is here irrelevant for the assessment of inventive step, which has to be based on the features of its technical implementation.
5.4.2.2 Example 2
This example is adapted from T 696/06.
Claim 1:
A computer-implemented method for brokering offers and demands in the field of transporting freight, comprising the following steps:
(a) receiving transportation offers/demands from users, including location and time data;
(b) receiving current location information of the users from GPS terminals with which the users are equipped;
(c) after receiving a new offer/demand request, verifying if there are previous offers/demands not yet satisfied that can respond to the new request;
(d) if so, selecting the one for which the current locations of both users are closest; and
(e) otherwise storing the new request.
Application of the steps of the problem-solution approach according to G-VII, 5.4:
A method for brokering offers and demands in the field of freight transportation, comprising:
(a) receiving transportation offers/demands from users, including location and time data;
(b) receiving information regarding the current location of the users;
(c) after receiving a new offer/demand request, verifying if there are previous offers/demands not yet satisfied that can respond to the new request;
(d) if so, selecting the one for which the current locations of both users are closest; and
(e) otherwise storing the new request.
Therefore, only the features related to the technical implementation of this business method can be identified as the features contributing to the technical character of the invention:
– The business method steps are carried out by a computer.
– The current location information is received from GPS terminals.
Step (iii): The difference between the subject-matter of claim 1 and D1 is thus the computer implementation of the steps of the business method defined above.
The technical effect of this difference is merely the automation of the business method underlying claim 1. The conclusion reached in step (i) holds, since the only distinguishing feature making a technical contribution is the technical implementation of this business method.
Step (iii)(c): The objective technical problem is formulated as how to adapt the method of D1 so as to implement the business method of brokering offers and demands according to the user’s current location. The person skilled in the art is considered to be a software project team and is given the knowledge of the business method in the form of a requirement specification.
Obviousness: Adapting the method of D1 to execute the business method steps is straightforward and requires routine programming only. Therefore, no inventive step is involved in the sense of Art. 52(1) and Art. 56.
Remarks: In this example, it was clear from the initial analysis at step (i) that underlying the claimed method was a method for brokering offers and demands, which as such is a business method. The features defining the business method were easily separable from the technical features of its computer implementation. Therefore, this example illustrates a line of argument in which it was possible in step (i) to determine all the features which contribute to the technical character of the invention and all those which do not. This line of argument pertains more to the field of computer-implemented business methods and might be less suitable in other fields.
5.4.2.3
Example 3
This example is adapted from T 102/08.
Claim 1:
A system for the transmission of a broadcast media channel to a remote client over a data connection, said system including:
(a) means for storing an identifier of the remote client and an indication of an available data rate of the data connection to the remote client, said available data rate being lower than the maximum data rate for the data connection to the remote client;
(b) means for determining a rate at which data is to be transmitted based on the indication of the available data rate of the data connection; and
(c) means for transmitting data at the determined rate to said remote client.
Application of the steps of the problem-solution approach according to G-VII, 5.4:
Step (ii): Document D1, which discloses a system for broadcasting video over an xDSL connection to the set-top boxes of subscribers, is selected as the closest prior art. The system comprises a database storing identifiers of subscribers’ computers and, in association with them, an indication of the maximum data rate for the data connection to each subscriber’s computer. The system further comprises means for transmitting the video to a subscriber’s computer at the maximum data rate stored for said computer.
Step (iii): The differences between the subject-matter of claim 1 and D1 are:
(1) Storing an indication of an available data rate of the data connection to the remote client, said available data rate being lower than the maximum data rate for the data connection to the remote client.
(2) Using said available data rate to determine the rate at which the data is transmitted to the remote client (instead of transmitting the data at the maximum data rate stored for said remote client as in D1).
“Under some pricing models, a customer may choose to pay a lower amount and receive a lower bit rate service when their line is capable of receiving a higher rate. Accordingly, the quality made available to the customer is preferably determined by the quality of service purchased and not necessarily the maximum quality available over the line.”
The feature of "available data rate being lower than a maximum data rate for the data connection to the remote client" is the result of a technical implementation of a pricing model which allows a customer to choose from several data rates, each rate being associated with a corresponding level of quality of service and being priced accordingly. This pricing model is itself non-technical through being of a financial, administrative or commercial nature and thus falling under the exclusion of schemes, rules and methods for doing business in Art. 52(2)(c). Thus the only technical effect achieved is determining the transmission data rate in accordance with the pricing model. The pricing model itself represents an aim to be achieved in a non-technical field which may be included in the formulation of the objective technical problem as a constraint to be met.
Step (iii)(c): The objective technical problem is therefore formulated as how to implement in the system of D1 a pricing model which allows the customer to choose to pay a lower amount to receive broadcast media channels at a quality of service lower than the highest possible quality of service (i.e. at a data rate lower than the maximum possible data rate of the data connection). The pricing model is considered to be provided to the skilled person as part of the objective technical problem.
Obviousness: Given the task of implementing this pricing model, it would be obvious to the skilled person that the maximum data rate purchased by a subscriber (i.e. the “available data rate” of claim 1), which can only be lower or equal to the maximum data rate of the data connection to the subscriber’s computer (i.e. the “remote client” of claim 1), would have to be stored for each subscriber and used by the system to determine the rate at which data is to be transmitted to a subscriber. Therefore, no inventive step is involved in the sense of Art. 52(1) and Art. 56.
Remarks: This example illustrates a claim which involves a complex mix of technical and non-technical features. On a prima facie basis in step (i), all features appeared to be technical. After comparison with D1, a detailed analysis of the technical character of the contribution made by the invention over D1 was possible at step (iii). This detailed analysis revealed that the purpose of transmitting data at a rate based on a pre-stored available data rate, lower than the maximum data rate for the data connection, was not technical but commercial. Since the contribution over D1 was the technical implementation of a non-technical concept (pricing model), incorporating this non-technical concept in the formulation of the objective technical problem, as in T 641/00, was particularly appropriate.
5.4.2.4
Example 4
This example is adapted from T 1227/05.
Claim 1:
A computer-implemented method for the numerical simulation of the performance of an electronic circuit subject to 1/f noise, wherein:
(a) the circuit is described by a model featuring input channels, noise input channels and output channels;
(b) the performance of the input channels and the output channels is described by a system of stochastic differential equations;
(c) an output vector is calculated for an input vector present on the input channels and for a noise vector y of 1/f-distributed random numbers present on the noise input channels; and
(d) the noise vector y is generated by the following steps:
(d1) setting the number n of random numbers to be generated;
(d2) generating a vector x of length n of Gaussian-distributed random numbers;
(d3) generating the vector y by multiplying the vector x with a matrix L defined according to equation E1*.
Background: The claim is directed to a method carried out by a computer for the numerical simulation of the performance of an electronic circuit subject to 1/f noise, which is one of the main sources of noise in electronic circuits. Features (a)-(c) specify the mathematical model used in the numerical simulation. It involves a noise vector y of 1/f-distributed random numbers, i.e. random numbers having a particular statistical property typical of real (physical) 1/f noise. Steps (d1)-(d3) define the mathematical algorithm used for generating these random numbers. According to the description, this mathematical algorithm is particularly efficient in terms of computation time and storage resources required to generate the random numbers needed for the simulation.
Application of the steps of the problem-solution approach according to G-VII, 5.4:
Step (i): The use of a computer to carry out the claimed method is a clearly technical feature. The question is whether the other features, in particular the mathematical algorithm of steps (d1)-(d3), also contribute to the technical character of the claimed subject-matter. Considered in isolation, steps (d1)-(d3) represent a mathematical method with no technical character. However, the claim is not directed to this mathematical method as such (which would be excluded from patentability under Art. 52(2)(a) and (3)) but is limited to a computer-implemented method in which this mathematical method serves the numerical simulation of the performance of an electronic circuit subject to 1/f noise, which is considered to be a technical purpose (G-II, 3.3). Features (a)-(c) ensure that the claim is functionally limited to this technical purpose by specifying the mathematical model used in the simulation and how the generated noise vector y is used in it, i.e. they establish the link between the stated purpose of the method and steps (d1)-(d3). Furthermore, the mathematical model specified by features (a)-(c) defines how the numerical simulation is performed and thus also contributes to the above-mentioned technical purpose. As a result, all the steps relevant to the circuit simulation, including the mathematically expressed claim features (d1)-(d3), contribute to the technical character of the method to the extent that they are relevant for circuit simulation.
Step (ii): Document D1, which discloses a method for numerical simulation of the performance of an electronic circuit subject to 1/f noise with steps (a)-(c) but with a different mathematical algorithm for generating the 1/f-distributed random numbers, is selected as closest prior art.
Step (iii): The difference between the methods of claim 1 and D1 is the mathematical algorithm used to generate the vector of 1/f-distributed random numbers, i.e. steps (d1)-(d3). The algorithm defined by steps (d1)-(d3) requires less computer resources than that used in D1. In the context of the claimed method, this results directly in a reduction of the computer resources required for the numerical simulation of the performance of an electronic circuit subject to 1/f noise, which is the technical effect achieved over D1.
Step (iii)(c): The objective technical problem solved with respect to D1 is formulated as how to generate the 1/f-distributed random numbers used in the numerical simulation of the performance of an electronic circuit subject to 1/f noise in a manner which requires less computer resources.
Obviousness: No prior art suggests the algorithm defined by steps (d1)-(d3) as a solution to the objective technical problem. The invention as claimed is therefore considered to involve an inventive step.
Remarks: This example illustrates the situation addressed in G-VII, 5.4, second paragraph: features which, when taken in isolation, are non-technical, but do, in the context of the claimed invention, contribute to producing a technical effect serving a technical purpose. Such features are considered to contribute to the technical character of the invention and may therefore support the presence of an inventive step.
Note that if the claim were not limited to the numerical simulation of an electronic circuit subject to 1/f noise, the mathematical algorithm defined by steps (d1)-(d3) would not serve any technical purpose and would thus not be considered to contribute to the technical character of the claim (requiring less computer resources than another mathematical algorithm being on its own not sufficient in this respect; see G-II, 3.3).
H-II 2.7 Late-filed requests after summons to oral proceedings in examination
The Division should first consider the requests before deciding on their admissibility. The mere fact that they are filed late is not per se a reason for not admitting them. This issue will normally be dealt with during oral proceedings.
In exercising its discretion under Rule 137(3) (see T 237/96, T 937/09), the Examining Division should take into account whether the applicant has good reasons for filing the request late. If the applicant has already had sufficient opportunity to address the objections, when balancing the relevant interests the Division may give more weight to bringing the examination procedure to a close.
Thus late-filed requests will generally be subject to the "clear allowability" criterion (see H II, 2.7.1).
2.7.1 Concept of "clear allowability"
Late-filed claims will
For example, late-filed requests will not be admitted if they do not clearly meet the requirements under Article 123(2) or Article 84. Likewise, late-filed requests may be rejected if the newly defined subject-matter does not constitute a convergent development of the subject-matter which has been the subject of examination.
When ascertaining whether or not the claims are clearly allowable, the Division takes into account whether the late-filed requests are accompanied by reasons explaining why the amendments have been made and how they are intended to overcome the objections raised.
If, after discussions, the Division comes to the conclusion that the late-filed requests are not clearly allowable, it should reject them under Rules 116(2) and 137(3) on the grounds that they do not contain subject-matter which is clearly allowable, i.e. because the subject-matter does not clearly meet the requirements of the EPC (for cases where the applicant does not attend the oral proceedings, see H‑III, 3.3.2, and E‑II, 8.3.3). In the decision, reasoning is also to be given as to why the specific requirement(s) for allowability is (are) not met.
The "clear allowability" criterion is generally also applied to patent proprietors' late-filed requests in opposition proceedings (see also T 98/96 with regard to opposition appeal proceedings).
H-II 7.2 Restriction to an unsearched invention
H-III 4.2 Different text in respect of the state of the art according to Art. 54(3) EPC 1973 and Art. 54(4) EPC 1973 under EPC 1973
See here.
H-III 4.3 Different text where a partial transfer of right has taken place pursuant to Art. 61 or Rule 78 in respect of certain designated states
4.3.1 Different text where a partial transfer of right takes place pursuant to Art. 61 in examination proceedings
If by a final decision pursuant to Art. 61 it is adjudged that a third party is entitled to the grant of a European patent in respect of only part of the matter disclosed in the European patent application, the original European patent application must contain, "where appropriate", for the designated Contracting States in which the decision was taken or recognised or must be recognised on the basis of the Protocol on Recognition, claims, a description and drawings which are different from those for the other designated Contracting States (see also H‑III, 4.1 and C‑IX, 2).
[...]
A disclaimer should remove no more than is necessary either to restore novelty or to disclaim subject-matter excluded from patentability for non-technical reasons. , unless this is required to satisfy Art. 84 EPC and does not lead to an arbitrary reshaping of the claims: Art. 84 applies equally to the claim per se and to the disclaimer itself (see T 2130/11).A claim containing a disclaimer must meet the clarity and conciseness requirements of Art. 84.
Correction of linguistic errors, errors of transcription and other mistakes in any document filed with the EPO may be requested at any time, as long as proceedings are pending before the EPO. However, during examination proceedings it is to be noted that such requests for correction can be considered only until such time as the decision to grant has been handed over to the EPO’s internal postal service, for transmittal to the applicant (in written proceedings), or has been pronounced in oral proceedings (see G 12/91).
Correction of linguistic errors, errors of transcription and other mistakes in any document filed with the EPO may in principle be requested as long as proceedings are pending before the EPO, provided that the request for correction has been filed without delay (G 1/12). However, during examination proceedings it is to be noted that such requests for correction can be considered only until such time as the decision to grant has been handed over to the EPO’s internal postal service, for transmittal to the applicant (in written proceedings), or has been pronounced in oral proceedings (see G 12/91; date “to EPO postal service” printed at the bottom of Form 2006A). Moreover, other temporary limitations apply to requests under Rule 139:
H-V 4.1 The subject-matter to be excluded is not disclosed in the application as originally filed (so-called undisclosed disclaimers)
If there is no explicit disclosure in the application of the claimed subject-matter remaining after the introduction of a disclaimer, a necessary condition for arguing an implicit disclosure, i.e. for arguing that the skilled person could carry out the remaining subject-matter based on common general knowledge, is that the remaining subject-matter was known at the effective filing date (see T 1441/13 and T 1808/13).[...]
A disclaimer should remove no more than is necessary either to restore novelty or to disclaim subject-matter excluded from patentability for non-technical reasons. , unless this is required to satisfy Art. 84 EPC and does not lead to an arbitrary reshaping of the claims: Art. 84 applies equally to the claim per se and to the disclaimer itself (see T 2130/11).
H-VI 2.1 Admissibility of corrections
(i) The request has to be made without undue delay after the error was discovered (G 1/12, J 16/08).
(ii) In case of correction of bibliographic data (e.g. priority, designation) or of procedural declarations (e.g. withdrawal), temporary limits may derive from the protection of the interests of the public. For instance, in the absence of any special circumstances, a request for correction of a priority claim by the addition of a first priority should be made sufficiently early for a warning to be included in the publication of the application (J 6/91).
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