T 1755/10 - Software implementation fallacy

Key points

• Published online on 10 March 2015
• This decision adds another fallacy to the fallacies under the Comvik approach, the "software implementation fallacy" 

EPO T 1755/10 - link

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division to refuse European patent application No. 99916241.5, entitled "Method and apparatus for determining commission", published as A1: WO-A1-99/60486. [...]





III [...] (a) Claim 1 according to the main request reads:

"1. A method for determining commissions to be paid to a plurality of recipients, wherein the method is implemented using one or more data processing systems that include (A) a data model, wherein said data model includes (i) quotas, (ii) allocation rules, and (iii) promotions and (B) a commission engine to receive transactions, to access the model and to process each transaction in accordance with the model, said method being executed by a computer and comprising:

- obtaining one or more transactions;
- obtaining from the data model one or more quotas that apply to the one or more transactions, and which represent levels of commissions available to one or more recipients;
- determining a quota state for each recipient using the commission engine, wherein each quota state includes recipient identification data and current performance data of the identified recipient;
- obtaining from the data model one or more promotions that specify a reward for one or more of said levels;
- calculating performances of the recipients based on said transactions and using the commission engine, wherein calculating performances comprises:
obtaining one or more of the allocation rules of the model corresponding to the transactions wherein for each of the transactions, said allocation rules apportion credit to one or more recipients; and
applying the allocation rules to the transactions,
using the quotas and quota states to calculate the performances;
- using the commission engine, determining a compensation for those recipients, the performance of which qualifies for a promotion."

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Reasons for the Decision
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Article 56 EPC 1973 ? Inventive step


2. In the light of Article 52(1)(2)(3) EPC, Article 56 EPC 1973 requires a non-obvious technical contribution (see e.g. T 641/00-Two identities/COMVIK, Headnote 1, OJ EPO 2003, 352; T 1784/06-Classification method/COMPTEL).


Non-technical aspects cannot meet that requirement. The overall goal of claim 1 is a method for determining performance-related commissions to be paid to sales representatives. This is a commercial goal; sales and marketing considerations ("commissions", "promotions", "reward", "credit", "compensation") cannot enter into the examination for an inventive step.


3. The claimed method seeks to support managers in a rapidly changing business environment (A1, page 3, paragraphs 2 and 3; page 4, paragraph 3). Automation is a general technical answer to that need: the method makes use of data processing systems. However, the general technical idea of computer-implemented automation is notorious, and its use is obvious also in the present context.


4. It is true that claim 1 comprises not only said general idea. The claimed implementation lends itself to rapid changes by combining a "commission engine" (a piece of software for a specific data processing task) with a "data model". Whenever rules have to be adapted to a changing situation, only the data model needs to be updated whereas the commission engine and its way of accessing the data model can be invariable.


5. In view of the broad wording of claim 1, the combination of a "data model" and an "engine" constitutes a general software concept. A priori, programs for computers are not regarded as inventions (Article 52(2)(c) EPC). If the application disclosed a "further" technical effect of the software concept, beyond the elementary interaction of any computer software and hardware (T 1173/97-Computer program product/IBM, OJ EPO 1999, 609), then the software concept would not relate to computer programming as such (Article 52(3) EPC).


6. As the overall goal of the claimed method (determining commissions) is not technical, the software concept cannot derive any (further) technical character from that goal. In fact, the Board judges that no "further" technical effect is present at all.


On the one hand, a "further" technical effect does not have to be external to the computer. For example, a specific way of programming might result in a more stable operation of the computer itself.


On the other hand, the Board does not follow the appellant's central and fundamental argument: Any different way of programming is said to change the internal operation of the computer and should be considered as a technical implementation already for that reason.


Such an approach would result in any software being considered as a technical means of its own. It would effectively remove computer programs from the list of non-inventions according to Article 52(2)(c) EPC -- by which the Board is bound (Article 23(3) EPC) even if the appellant regards this as a discrimination against computer-implemented inventions.


Therefore, the Board judges that in the absence of any other potential "further" technical effect, the mere use of a specific software solution does not amount to a technical implementation (which would have to be considered in the inventive step examination).


In other words, the frequent general argument that modified software causes a modified behaviour of the computer and should for that very reason (eo ipso) be considered as a technical implementation means is insufficient. Hence, a "software implementation fallacy" might be added to a pertinent gallery established recently by the Board (T 1670/07-Shopping with mobile device/NOKIA).


7. As the software concept is not considered to contribute to the technical character of the method, it does not enter into the examination for an inventive step.


Hence, it can be left open what kind of code is intended to form a "data model" according to claim 1, i.e. whether the wording of the claim rules out conventional program modules (subroutines), which are well-known to increase the flexibility of programming and facilitate the maintenance of programs.


8. The data items processed according to the claimed method are defined by their commercial content and intent rather than by any non-obvious functional or structural aspect. Hence, they do not provide any non-obvious contribution, either.


9. Therefore, the Board judges that the method of claim 1 does not involve any inventive step.


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Order


For these reasons it is decided that:


The appeal is dismissed.