5.4.1
Formulation of the objective technical problem 

The objective technical problem must be a technical problem which the skilled person in the particular technical field might have been asked to solve at the relevant date. It should not be formulated in such a way as to refer to matters of which the skilled person would only have become aware by knowledge of the solution claimed (G‑VII, 5.2). In other words, the objective technical problem must be so formulated as not to contain pointers to the technical solution. However, this principle only applies to those features of the subject-matter claimed which contribute to the technical character of the invention and hence are part of the technical solution. Merely because some feature appears in the claim does not automatically exclude it from appearing in the formulation of the problem. In particular, where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met (T 641/00).

In other words, the formulation of the objective technical problem may refer to features which do not make a technical contribution, or to any non-technical effect achieved by the invention, as a given framework within which the technical problem is posed, for example in the form of a requirements specification provided to the person skilled in a technical field. The aim of formulating the technical problem according to these principles is to ensure that inventive step is acknowledged only on the basis of features which contribute to the technical character of the invention. The technical effects used for formulating the objective technical problem have to be derivable from the application as filed when considered in the light of the closest prior art (G‑VII, 5.2).

In the case of claims directed to a technical implementation of a non-technical method or scheme, in particular of a business method or game rules, a modification to the underlying non-technical method or scheme aimed at circumventing a technical problem, rather than addressing this problem in an inherently technical way, is not considered to make a technical contribution over the prior art (T 258/03, T 414/12). Rather, such a solution constitutes a modification to the constraints given to the technically skilled person tasked with the implementation of the given non-technical method or scheme.

In such cases, consideration should be given to any further technical advantages or effects associated with the specific features of the technical implementation over and above the effects and advantages inherent in the underlying non-technical method or scheme. The latter are at best to be regarded as incidental to that implementation (T 1543/06). They do not qualify as technical effects for the purpose of defining the objective technical problem.

Example 

In a game played online over a distributed computer system, the effect of reduction in network traffic obtained by reducing the maximum number of players cannot form the basis for formulating the objective technical problem. It is rather a direct consequence of changing the rules of the game, which is inherent in the non-technical scheme. The problem of network traffic reduction is not addressed by a technical solution but circumvented by the non-technical gaming solution offered. The feature defining the maximum number of players thus constitutes a given constraint which forms part of the non-technical scheme that the skilled person, e.g. a software engineer, would be tasked to implement. Whether the claimed specific technical implementation would have been obvious to him would still have to be assessed.

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