Software patents in Europe: Information modelling is in itself not patent-eligible

The patent application at stake in decision T 0049/99 (Information modelling/INTERNATIONAL COMPUTERS) of March 5, 2002 concerned a method for analysing a physical system such as a manufacturing plant. The output of the claimed method was in essence an object-oriented information model reflecting the essential properties of the system.

The technical board of appeal 3.5.01 thus had to answer the following question: Is information modelling patent-eligible subject-matter?

Catchwords

Information modelling is an intellectual activity and should be treated like any other human activity in a non-technical field, which is, as such, not an invention for the purposes of Article 52(1) EPC. Only the purposive use of information modelling in the context of a solution to a technical problem may contribute to the technical character of an invention.

From the reasons

5. Article 56 EPC defines that an invention shall be considered to involve an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

Furthermore, consideration has to be given to the “problem-and-solution approach” which is applied by the boards of appeal in examining inventive step (see the EPO publication “Case Law of the Boards of Appeal of the European Patent Office”, 4th edition 2001, pages 101 ff.). According to this approach an invention is to be understood as a technical solution to a technical problem, if it involves an inventive step, demanding more from the person skilled in the art than the technical skills and knowledge a technical professional in the respective technical field is expected to have.

If the invention as claimed relates to non-technical subject-matter or activities, only those aspects or elements of the invention which contribute to its technical character are to be given significance in assessing inventive step [note: see the COMVIK decision].

6. In claim 1 of the present main request, steps (a) to (f) define a method for analysing a physical system and providing an information model reflecting the essential properties of the physical system (see also the description, page 1, lines 18 ff. or page 3, lines 9 ff.). The implementation of the data structure in a computer by means of relational database technology is the subject-matter of the remaining part of the claims, i.e. of steps (g) to ().

7. Information modelling is a formalized process carried out by a system engineer or a similar skilled person in a first stage of software development for systematically gathering data about the physical system to be modelled or simulated and to provide so to say a real world model of the system on paper. Although information modelling embodies useful concepts and methods in developing complex software systems, it is as such an intellectual activity having all traits typical for non-technical branches of knowledge and thus being closely analogous to the non-inventions listed under Article 52(2)(a) and (c) EPC.

In examining inventive step, it should hence be treated like any other human activity in a non-technical field, which is, as such, not an invention for the purposes of Article 52(1) EPC. Only the purposive use of information modelling in the context of a solution to a technical problem, as e.g. is the case for the preferred embodiment relating to the control and management of technical processes in a power system, may contribute to the technical character of an invention.

8. The claimed invention, however, is not restricted to power systems; as expressly indicated in the description the invention may be applied to various types of systems, “large, complex systems” including manufacturing plants and other physical systems (see description, page 30, lines 10 ff.). Claim 1 uses the generic expression “physical system”, which is actually a term including any real world system, even business and administrative organisations.

In the light of the broad meaning of the expression “physical system”, information modelling in terms of the first part of claim 1 has to be construed as an abstract non-technical activity using abstract constructs like objects, types, attributes, and relationships.

Read the whole decision here.

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