Quick Navigation
Pure business methods as such are not patentable (Art. 52(2) and (3) EPC 1973), (see e.g. T 931/95, OJ 2001, 441).
In T 769/92 (OJ 1995, 525) the applicant claimed a computer system for plural types of independent management including at least financial and inventory management and a method for operating said system. Data for the various types of management which could be performed independently from each other with this system could be inputted using a single "transfer slip", in the form of an image displayed on the screen of the display unit of the computer system, for example. Although financial and inventory management would generally fall under "doing business", the board held that the invention was not excluded from patentability under Art. 52(2)(c) and (3) EPC 1973. In its view the particular kinds of management mentioned were not decisive; the fact that they were of different "specific" types to be performed "independently" of each other was found to be important. The application contained the teaching to provide, in the memory unit of the computer system, certain files and processing means for storing and further processing the data entered and causing the processing unit to perform these functions. The implementation of this teaching required the application of technical considerations. In the board's view the non-exclusion from patentability also applied to inventions where technical considerations were applied concerning particulars of their implementation. The very need for such technical considerations implied the occurrence of an at least implicit technical problem to be solved and at least implicit technical features solving this problem. Furthermore, the provision of the single transfer slip required the application of technical considerations. This "user interface" implied that, in effect, independent financial and inventory management systems were combined by a common input device allowing data entered for use in one of the said systems also to be used, if required, in the other system. The implementation of such an interface in the claimed computer system was not merely an act of programming, but rather concerned a stage of activities involving technical considerations to be carried out before programming could start. However, it was established board of appeal practice to allow patentability for a mix of technical and non-technical features.
In T 931/95 (OJ 2001, 441) the board addressed the patentability of inventions relating to business methods. Claim 1 of the main request was directed to a method for controlling a pension benefits program by administering at least one subscriber employer account. The board stated that if the method was technical or, in other words, had a technical character, it still might be a method for doing business, but not a method for doing business as such. However, all the features of claim 1, i.e. the individual steps defining the claimed method, were steps of processing and producing information having purely administrative, actuarial and/or financial character. Processing and producing such information were typical steps of business and economic methods. Thus the invention as claimed did not go beyond a method of doing business as such and was excluded from patentability under Art. 52(2)(c) EPC 1973 in conjunction with Art. 52(3) EPC 1973. The board added that using technical means for a purely non‑technical purpose and/or for processing purely non-technical information did not necessarily confer technical character on any such individual steps of use or on the method as a whole. The mere occurrence of technical features in a claim did not turn the subject-matter of the claim into an invention within the meaning of Art. 52(1) EPC 1973.
Further, the board found that a computer system suitably programmed for use in a particular field, even if that was the field of business and economy, had the character of a concrete apparatus in the sense of a physical entity, man-made for a utilitarian purpose and was thus an invention within the meaning of Art. 52(1) EPC 1973. This distinction with regard to patentability between a method for doing business and an apparatus suited to perform such a method was justified in the light of the wording of Art. 52(2)(c) EPC 1973, according to which "schemes, rules and methods" were non-patentable categories in the field of economy and business, but the category of "apparatus" in the sense of "physical entity" or "product" was not mentioned in Art. 52(2) EPC 1973. This meant that, if a claim was directed to such an entity, the formal category of such a claim did in fact imply physical features of the claimed subject-matter which could qualify as technical features of the invention concerned and thus be relevant for its patentability. An apparatus constituting a physical entity or concrete product suitable for performing or supporting an economic activity, was an invention within the meaning of Art. 52(1) EPC 1973.
In T 258/03 (OJ 2004, 575) the board considered that the wording of Art. 52(2)(c) EPC 1973, according to which "schemes, rules and methods for performing mental acts, playing games or doing business" were not to be regarded as inventions within the meaning of Art. 52(1) EPC 1973. The board was not convinced that this wording imposed a different treatment of claims directed to activities and claims directed to entities for carrying out these activities. What mattered having regard to the concept of "invention" within the meaning of Art. 52(1) EPC 1973 was the presence of technical character which might be implied by the physical features of an entity or the nature of an activity, or might be conferred on a non-technical activity by the use of technical means. In the board's view, activities falling within the notion of a non-invention as such would typically represent purely abstract concepts devoid of any technical implications. The board held that a method involving technical means is an invention within the meaning of Art. 52(1) EPC 1973 (as distinguished from decision T 931/95). The board noted that previous decisions of the boards of appeal had held that the use of technical means for carrying out a method for performing mental acts, partly or entirely without human intervention, might, having regard to Art. 52(3) EPC 1973, render such a method, a technical process or method and therefore an invention within the meaning of Art. 52(1) EPC 1973" (T 38/86, OJ 1990, 384, T 769/92). However, method steps consisting of modifications to a business scheme and aimed at circumventing a technical problem rather than solving it by technical means could not contribute to the technical character of the subject-matter claimed.
For the reasons above the board also held that the apparatus of claim 3 was an invention within the meaning of Art. 52(1) EPC 1973, since it comprised features which were clearly technical such as a "server computer", "client computers" and a "network". This conclusion was in conformity with decision T 931/95. The board stated that this line of reasoning was independent of the category of the claim.
In T 854/90 (OJ 1993, 669), a computer manufacturer applied to patent a method for operating an electronic self-service machine (e.g. cash dispenser) which could be accessed using any machine-readable card. A prospective user first had to insert such a card to enable its identification data to be stored; he then keyed in credit information about himself onto an "electronic application form", thereby permitting a decision to be taken on whether to authorise him as a user. Once authorised, he could access the system using that same card. The board ruled that this was not patentable - parts of the method claimed were merely instructions for using the machine, and although technical components were used, this did not alter the fact that what was being claimed was a method for doing business as such.
In T 636/88 claim 1 was for a method of distributing material transported in bulk by ship: on the quayside a weighing and bagging apparatus was mounted which could be shipped in standard containers and was used to unload and bag the material before moving on to the next port. The other claims were directed to the bagging apparatus itself. The board, however, took the view that the method claimed clearly did have technical character, involving as it did the use of technical equipment (bagging apparatus) to achieve a technical end (the production of sealed, weighted bags of the material in question).
In T 1002/92 (OJ 1995, 605), a system was claimed for determining the queue sequence for serving customers at a plurality of service points. The system gave the customer the possibility to select one particular service point; it comprised, in particular, a turn-number allocating unit, terminals for each service point, an information unit which indicated the particular turn-number and the particular free service point to the customer.
The board held that the wording of the claim left no doubt that protection was sought for a three-dimensional object with certain capacities - the claim defined a technical item clearly belonging to the category of an apparatus with constructional components which were characterised in terms of their functions. Summarising, the board took the view that the claim was directed to an apparatus which comprised, inter alia, computer hardware operating according to a particular computer program. The program-determined output signal of the hardware was used for an automatic control of the operation of another system component (the information unit) and thus solved a problem which was completely of a technical nature. Moreover, the fact that one of the practical applications of the system concerned the service of customers via "business equipment" did not mean that the claimed subject-matter must be equated with a method for doing business as such.
In T 59/93 method claim 1 was to be understood as defining, by the steps it comprised, the functional features, in operation, of an interactive draw graphic system, normally implemented by a program-controlled computer, its operator being the user. In steps (e), (g) and (h), mathematical methods were implied for calculating coordinates, lines and an angle. The board noted that mathematical methods as such would be excluded from patentability by Art. 52(2)(a) in conjunction with (3) EPC 1973. However, clearly, the claim did not relate to a mathematical method as such; it did not define any formula according to which the calculations should be performed. Rather, the calculating steps mentioned were only means, or tools, used within the overall method claimed, for entering a rotation angle value into a draw graphic system. The graphic objects to be rotated were not restricted, by their meaning or information content, to business graphics such as pie charts, bar graphs, etc. No objection, therefore, could be raised under Art. 52(2)(c) in conjunction with (3) EPC 1973 that the claimed method would be doing business as such.