T 2049/23 - Watermelons and discoveries

Key points

• The opponents include "Keine Patente auf Saatgut! e.V.". The patent concerns a conventionally-bred watermelon.
• The opponent argued that "the transitional period created by opinion G 3/19 should not be taken into account and that it did not matter whether the patent applications were filed before or after July 2017."
• The present Board: "in order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board of Appeal [in G 3/19] further decided that "the new interpretation of Article 53(b) EPC given in this opinion has no retroactive effect on European patents containing such claims which were granted before 1 July 2017, when Rule 28(2) EPC entered into force"
• It seems that the opponent did not invoke Article of the AC decision that inserted Rule 28(2): "This decision shall enter into force on 1 July 2017. Rules 27 and 28 EPC as amended by Articles 1 and 2 of this decision shall apply to European patent applications filed on or after this date, as well as to European patent applications and European patents pending at that time" (OJ EPO 2017, A56). This is a pity, because the EBA did not expressly set aside that part of the AC's decision.
• On inventive step:  the appellants  [opponents] submit that the claimed watermelon plants having a bush growth habit constitute a discovery rather than an invention. The board understands this as an objection under Article 100(a) and Article 52(2)(a) EPC to the effect that the claimed subject-matter is not a patentable invention but a discovery.'" 
•  "According to the case law of the Boards, a substance which occurs in nature can be considered an invention when it is shown to give rise to a technical effect. This principle is reflected in Rule 27(a) EPC, according to which biotechnological inventions are patentable if they concern biological material which is isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature. 
• For example, if a microorganism is found in nature and shown to produce an antibiotic, the microorganism itself may also be patentable as one aspect of the invention. 
• Similarly, a gene which is discovered to exist in nature may be patentable if a technical effect is revealed, e.g. its use in making a certain polypeptide or in gene therapy
•  "The board considers that the plants (and plant tissues) of claims 1 to 16 do not constitute a discovery." 
• "While the "home-garden diploid watermelon [with] an interesting growth type" mentioned in paragraph [0119] of the patent [] could be argued to be a discovery, it is not part of the claimed subject-matter. Instead, the mutated allele present in said plant has been transferred to other plants (i.e. those producing seedless fruit) and these have been shown to produce a technical effect: as set out in paragraph [0001] of the patent "this plant can be grown at a higher density in the field compared to traditional non-bush triploid watermelon hybrids, leading to a higher fruit yield per hectare compared to triploid hybrids with normal growth habit (having an average longest vine length of above 200 or above 300 cm)"."
• The appeal is dismissed. 

EPO 

The link to the decision can be found after the jump.

T 0323/21 - Mathematical device

Key points

• "The invention relates to an applied cipher technique and, in particular, to a method for determining whether a nondecreasing sequence exists, without revealing input data"
• "There is a method, known from the prior art, called secure computation, for computing encrypted results from encrypted data without decrypting any of the encrypted data. Encryption is performed that distributes pieces of a numerical value among a plurality of secure computers which cooperate to perform a computation in such a manner that the result is distributed among the secure computers without reconstructing the numerical value, that is, with the result and the original value being kept encrypted"
•  Claim 1 is directed to "A nondecreasing sequence determining device (2), "
•  The device of claim 1 according to the main request consists of a combination of functional units that cooperate to assess whether a nondecreasing sequence can be created from a sequence of sets of numbers. This is achieved by selecting elements, one by one from each set in the sequence. The claim does not contain any reference to any concrete use of the result. The various functional units of the device are defined by their mathematical roles in the determination of whether or not there is a nondecreasing sequence."
• "The technical nature of the claimed subject-matter is limited to the existence of the software code running on the claimed device."
• "the mathematical functionalities defined in claim 1, to the extent that they do not interact with technical features to produce a technical effect, cannot justify the existence of an inventive step. "
• "The algorithm underlying the claimed device is exclusively of a mathematical nature. It is without any interaction with the device on which it operates. The technicality of the claimed device lies only in its materiality. Concretely, its technicality is limited to the combination of software code with the associated processing unit. The claimed device with its program code implements a purely mathematical method deprived, in its generality, of any technical purpose."
• "Independent claim 1 does not contain any concrete reference to a use of the claimed device and method. Therefore, independently of the fact that text matching is not technical in itself, no technical contribution can be derived from any specific use of the claimed invention if it cannot be derived, explicitly or implicitly, from the claimed subject-matter. "
• " More fundamentally, the effect put forward by the applicant is also not sufficient to confer technical character to a method which is mathematical by nature. In the absence of interaction with the device on which the algorithm is to be run, the recited method does not add to its technical character."
• Note, the ED rejected the application for lack of clarity. The Board's preliminary opinion was that the claims were clear and sufficiently disclosed, with a single sentence about 'technical contribution' under the inventive step. 
• There was no auxiliary request specifically directed to secure computing, it seems.
• 
  
  

EPO 

The link to the decision can be found after the jump.

T 1798/13 - Simulating the weather is not technical (and G 1/19)

Key points

• In this examination appeal about a claim directed to a “method for forecasting a value of a weather-based structured financial product”, i.e. about predicting the value of a financial product, the applicant argues that the method steps provide "an improvement in the weather data by calculating and further processing", which would be a technical effect. 
• “In the Board's view this leads to the key issue in this case, namely whether improving the accuracy of given data of a weather forecast is technical. If it is not, then the details of the algorithm, the "mathematics" as the division put it, does not help.”
• “The Board judges that it is not. The "weather" is not a technical system that the skilled person can improve, or even simulate with the purpose of trying to improve it. It is a physical system that can be modelled in the sense of showing how it works. In the Board's view, this kind of modelling is rather a discovery or a scientific theory, which are excluded under Article 52(2)(a) EPC”.
• It seems to me that the present Board effectively proposes an answer in the pending referral G1/19 . Of course, question 1 therein assumes "the computer-implemented simulation of a technical system or process", but the actual subject-matter of the claim 1 at issue in  G1/19 is  "a computer-implemented method of modelling pedestrian crowd movement in an environment", and pedestrian crowd movement is in my view quite similar to 'the weather': neither pedestrians nor clouds are “a technical system that the skilled person can improve”, to quote the present Board. Claim 1 at issue in G1/19 does not recite a 'building' and in any case, it isn't the building that is simulated (e.g. constructional modelling) but the pedestrians.
• The present decision is consistent with T 1227/05, in that simulation of 1/f noise in an (electric) circuit is technical because the skilled person can try to improve the electric circuit,  in particular, to improve the noise resistance. 

EPO T 1798/13 -  link

EPO Headnote

" The "weather" is not a technical system that the skilled person can improve, or even simulate with the purpose of trying to improve it. It is a physical system that can be modelled in the sense of showing how it works. This kind of modelling is rather a discovery or a scientific theory, which are excluded under Article 52(2)(a) EPC and thus do not contribute to the technical character of the invention "

VIII. Independent claim 1 of the sole request reads as follows:

"1. A method for forecasting a value of a weather-based structured financial product for steering of an optimal weather derivative portfolio based on specified weather measures comprising temperature and/or precipitation and/or hours of sunshine and/or heating degree days and/or cooling degree days and/or wind speed retrieved from a weather data measuring and monitoring system comprising:
calculating reference weather data at least including temperature data from historical weather data at least including temperature data stored in a database (16) or retrieved from an external weather-data measuring system (5) by means of a weather reference module (11) for a defined time period and a defined geographical area, wherein the historical weather data covering a plurality of years as a time series, is decomposed in portions with deterministic data and a portion with stochastic data, wherein the deterministic portions include historical trend data and seasonal pattern data, and wherein the reference weather data is determined for the defined time period and the defined geographical area defined in correspondence with the parameters of the structured financial product to be forecasted by establishing the reference weather data from the deterministic data, applicable to the defined time period, through auto regression, and from stochastic data determined for the time period;
establishing forecasted weather data by means of a weather forecast module (12) based on multi-year historical weather data and long-term weather forecast data covering one or more months and storing the forecasted weather data as multiple sets of forecasted weather data for subsequent time periods in database (16) assigned to their respective time period;
calculating weighted forecasted weather data by means of a weighting module (121) from the multiple sets of forecasted weather data stored in the database (16), wherein each set of forecasted weather data is weighted by a weighting factor having a value that increases from one time period to the next subsequent time period;
calculating a forecasted weather index at least including an average temperature, a cumulative temperature a number of heating degree days or a number of cooling degree days for the defined time period and the defined geographic area from the forecasted weather data, wherein the type of index is defined by a respective parameter of the financial product to be forecasted, and calculating a forecast value of the structured financial product based on forecasted weather data for a defined time period and a defined geographical area, wherein the forecast value is calculated by applying structural parameters of the financial product to the forecasted weather index determined from the forecasted weather data;
calculating a reference weather index at least including an average temperature, a cumulative temperature a number of heating degree days or a number of cooling degree days for the defined time period and the defined geographic area from the reference weather data by means of a reference module (13), wherein the type of index is defined by a respective parameter of the financial product to be forecasted, and calculating a reference value of the structured financial product based on the reference weather data, wherein the reference value is calculated by applying the structural parameters of the financial product to the reference weather index determined from the reference weather data;
calculating a ranked probability score for the reference weather data by integrating a cumulative distribution function of the forecasted weather data representing the actual relevant weather situation, and calculating a ranked probability score for the forecasted weather data, by integrating a cumulative distribution function of the forecasted weather data representing the actual relevant weather situation,
calculating a quality indicator by means of a quality indicator module (15), indicative of a forecasting quality associated with the forecasted weather data, based on the forecasted weather data and the reference weather data, wherein the quality indicator is calculated as a ranked probability skill score from the ranked probability score for the forecasted weather data and the ranked probability score for the reference weather data, the ranked probability skill score indicating the accuracy of the forecast of the weather data compared to the reference weather data according to the percentage of improvement in accuracy of the forecast weather data over the reference weather data; and
calculating the value of the financial product by means of a value forecasting module from the reference value and from the forecast value weighted by the quality indicator, wherein the influence of the forecasted value on the calculated value of the financial product is adjusted."

Reasons for the Decision

2.9 The applicant's second argument is essentially that also an improvement in the weather data by calculating and further processing it is also technical. In the Board's view this leads to the key issue in this case, namely whether improving the accuracy of given data of a weather forecast is technical. If it is not, then the details of the algorithm, the "mathematics" as the division put it, does not help.

T 1028/14 - Spam filter is technical

Key points

• In this examination appeal, claim 1 is directed to a method of filtering (email) messages for spam. The Examining Division had refused the claim for lack of inventive step, disregarding most features of the claims as being non-technical because they would merely relate to "a scheme for processing data". The Board finds the ED's analysis flawed. The Board considers the filtering of spam messages to be a technical problem, such that the related method steps are technical. 
• The Board finds that the method steps" are indeed "part of the functional computer system" and do not merely relate to a "scheme for processing data" (which is in any event not mentioned in the list of non-inventions in Article 52(2)(a) to (d) EPC). " 

EPO T 1028/14 - link

Claim 1 of the present set of claims reads as follows:

"A method of determining a likelihood that a received message is an undesired message, comprising the steps of:
(i) receiving a message at a messaging system;
(ii) forwarding to a reputation engine a pre-selected set of identifiers relating to the origin of the message, the pre-selected set of identifiers including an IP address from which the received message originated, a tuple of a domain at which the received message allegedly originated and the IP address from which the received message originated, and a tuple of a user who allegedly originated the message and the IP address from which the received message originated;
(iii) checking databases at the reputation engine to determine previously determined reputation metrics for the forwarded identifiers and returning any previously determined reputation metrics to the messaging system;
(iv) making a first determination at the messaging system of a likelihood as to whether the received message is undesired using a first set of criteria including the returned reputation metrics; and
(v) marking the message as being either desired or undesired in accordance with the first determination."

Reasons for the Decision

1. Allowability of the appeal

1.1 Assessment of inventive step in the appealed decision

1.1.1 The board understands the statement in point 2.12 of the communication of 30 August 2013 to which the appealed decision makes reference (cf. point I above) to imply that features (i) to (iv) of claim 1, leaving aside the terms "messaging system", "reputation engine" and "IP address", represented non-technical features merely relating to "a scheme for processing data". This is confirmed by points 2.13 and 2.14 of that communication, addressing the assessment of inventive step according to the problem-solution approach. The board does not agree with this finding for the reasons set out below.

T 0651/12 - Not merely abstract mathematical methods

Key points

• " Meant are in Article 52(2)(a) EPC, in the board's view, merely abstract mathematical methods, ie calculations for the sake of the calculation. In the present case, however, the outcome of the calculation is used for a technical purpose, namely to display information in an ergonomically improved manner." 
• " Generally, the view is taken that the reference to presentations of information in Article 52(2)(d) EPC is meant to relate exclusively to the information content and not to the way the information is presented."
• "In the board's opinion, ergonomics, understood as the applied science of refining the design of products to optimize them for human use, in the context of the map display of the present case, is a technical field. Displaying the three-dimensional bird's eye view map is, thus, considered to provide a technical solution to a technical problem."

 T 0651/12 -  link

Reasons for the Decision

1. The appeal is admissible.

2. Supplementary search

As noted above, the Supplementary European Search Report contained the following statement:

"The technical aspects identified in the present application (Art. 92 EPC) are considered part of common general knowledge. Due to their notoriety no documentary evidence is found to be required. For further details see the accompanying Opinion and the reference below. XP002456252"

The reference to an accompanying Opinion is of no use as no Opinion is on file.

The reference to document XP002456252 is confusing as according to its heading it concerns a statement in accordance with a notice from the EPO concerning business methods. The case at issue, however, clearly does not concern any business method.

Moreover, according to the statement, the claimed subject matter related to processes comprised in the list of subject-matter and activities excluded from patentability under Article 52(2) and (3) EPC. However, it remains unclear to which excluded subject-matter or activities the search division considered the claimed subject-matter to be related to and accordingly why no documents were cited in the Supplementary European Search Report.

3. Technical subject-matter

3.1 According to the decision under appeal, claim 1 related to a map display apparatus, considered to be technical, and further comprised the steps of a non-technical method essentially defining an abstract calculation on the basis of modelled map data.