INFORMATION FROM THE CONTRACTING / EXTENSION STATES
Decision of the Supreme Administrative Court (Regeringsrättens Dom) of 13 June 1990*
Headword: Voice signal
Section 1(1) Patents Act
Keyword: "Technical invention - use of a mathematical method in a technical process - no weighing up of technical and non-technical elements"
1. Inventions containing technical features are not excluded from patent protection simply because they contain a scientific theory, mathematical method or computer program.
2. Where the invention concerns not solely an abstract mathematical method but the use of such a method in a technical process, it is of a technical nature (when viewed in it sentirety). It is irrelevant whether only known technical aids are employed for solving the technical problem.
3. With respect to legal provisions, Sweden's ratification of the EPC justifies aligning Swedish case law with the case law of the Boards of Appeal and practice of the European Patent Office (EPO) when applying provisions that are in keeping with the EPC.
Reasons for the Decision
According to Chapter I, Section 1, first paragraph, Patents Act, a patent can only be granted for an invention that is susceptible of industrial application. The second paragraph of this provision gives examples of when a patent cannot be granted, e.g. when what is involved is purely a mathematical method or a computer program. These provisions are due for the most part to the basic idea that an invention must be of a technical nature in order to be an invention within the meaning of the Patents Act (...).
The Swedish Patents Act is (...) formulated in such a way that the restrictions on patentable inventions correspond to those in the European Patent Convention (EPC). The expression "utgör enbart" (= "is merely", e.g. merely a mathematical method or computer program) in the Swedish Patents Act has its counterpart in the EPC in the phrase "such subject-matter or activities as such". The wording of the Patents Act does not seem to have been chosen with the intention of expressing a difference in content from the EPC.
Only Swedish patent legislation is of direct relevance when deciding whether a patent can be granted in Sweden. However, in view of the virtually identical wording of Section 1, second paragraph, Patents Act and the corresponding provision of the EPC great importance should be attached to how practice has developed in the EPO. This argument was also put forward in the preparatory work to the Patents Act and is further supported by the fact that patents granted by the EPO have the same effect in Sweden as patents granted by the Swedish Patent Office.
EPO practice in this area was for a long time uncertain and did not seem to adopt a clearer stance until 1985, when the position was outlined as follows in a revised issue of the Guidelines for Examination in the European Patent Office: Consideration was to be given to the invention as a whole as well as to that which constituted the actual contribution made to the state of the art. If the registered patent made a technical contribution to a known technology, patentability was not to be excluded because a computer program was included in the embodiment of the invention. This means, for example, that program-controlled machines or control processes are normally to be regarded as patentable subject-matter (Guidelines C-IV, pp. 29-37)1.
General assessments of this type have already been made in some EPO Technical Board of Appeal decisions.
In Decision T 208/84 of 15 July 1986 (OJ EPO 1987, 14), the invention related to the filtering of images whereby the image information, in the form of a data matrix, was subjected to mathematical processing with a view to improving the information. The invention was considered patentable. In the Reasons for the Decision the Board of Appeal said inter alia that no direct technical result was produced by a mathematical method as such. If on the other hand a mathematical method was used in a technical process, that process was carried out on a physical entity (which might be a material object but equally an image stored as an electric signal) by some technical means implementing the method and provided as its result a certain change in that entity. The technical means might include computers comprising associated suitable hardware or appropriately programmed general purpose computers. The appeal division was therefore of the opinion that even when the idea underlying an invention was based on a mathematical method, a patent claim referring to a technical process in which the method was used did not seek protection for the mathematical method as such (see Reasons for the Decision Nos. 5 and 6).
In Decision T 26/86 of 21 May 1987 (OJ EPO 1988, 19), the invention related to an X-ray apparatus incorporating a data processing unit operating in accordance with a routine which produced a technical effect in the X-ray apparatus (see Reasons for the Decision No. 3.1). The Board of Appeal stated inter alia that an invention must be assessed as a whole. If it included both technical and non-technical elements, the use of non-technical elements could not detract from the technical nature of the new teaching in its entirety. The EPC does not require the invention to be exclusively or largely of a technical nature. It does not prohibit the patenting of inventions consisting of a mix of technical and non-technical elements. Nor is it necessary to weigh up the technical and non-technical features in a patent claim in order to assess whether the claim relates to a computer program as such. If an invention in accordance with the patent claim uses technical means, its patentability cannot be excluded by Article 52 EPC (see Reasons for the Decision No. 3.4). The appeal division stated that the invention was patentable irrespective of whether or not the X-ray apparatus without the computer program formed part of the state of the art.
Practice in Sweden says that if an invention basically consists of mathematical steps that can be carried out by programming, the invention is not patentable (Collection of judgments of the Supreme Administrative Court 1974, Ref. 11; 1983 2: 25; 1984 Ab 283). Furthermore, when the patentability of an invention is being assessed any non-technical method included may not be considered (RA 1982 2 : 25).
It is clear from the above that Swedish practice differs from the view held in the two aforementioned decisions of the EPO's Technical Boards of Appeal. In this respect the Supreme Administrative Court stresses that the application of the principles of patentability as expressed in the decisions is in itself compatible with Section 1, second paragraph, of the Swedish Patents Act. Sweden's accession to the EPC provides good reason, when applying internal law, for heeding the practice
followed by the EPO when applying the corresponding provisions of the EPC insofar as it is compatible with Swedish legislation. It follows that the granting of a patent for an invention with technical features may not be refused on the basis of Section 1, second paragraph, Patents Act solely because the invention contains a scientific theory, a mathematical method or a computer program.
The invention with which the Supreme Administrative Court is concerned here relates to a device for determining the pitch of a voice signal. The pitch or fundamental tone is a characteristic parameter of the human voice, with the fundamental tone also comprising a number of overtones that bear some specific relation to the fundamental tone.
The subject-matter of the invention is a device in which, at regular intervals, specific time segments of the voice signal are converted by known means into digital form, allowing a series of significant frequency components occurring during each time segment to be determined.
The invention is characterised in that this series is compared with pre-determined series of frequency components comprising assumed values for the fundamental tone and associated overtones. The pre-determined series which best matches the series determined during the time segments enables an initial classification to be made of the pitch value. Thereafter a more precise classification is made on the basis of remaining deviations from the best series.
It follows from the description that certain steps of the device can be carried out by software in a conventional computer.
Compared with known processes, the device enables both the number of calculations and the sensitivity to interfering signals and noise occurring simultaneously to the voice signal to be reduced. (...)
The central idea of the invention involves a method for the harmonic analysis of a periodic sequence aimed at determining a specific frequency component during the sequence. Seen out of context the method is not of a technical nature and belongs in the "unpatentable" category.
In accordance with the patent claim the invention also has the following peculiarities:
1. The analysis relates to a voice signal.
2. The frequency component to be determined is the pitch of the voice signal.
3. Analysis is carried out by or in a device for speech
4. The analysis is carried out during regularly selected time intervals of the voice signal.
From these peculiarities and further explanations in the process it is concluded that what is involved here is not solely an abstract mathematical method, but the use of such a method in a technical process for measuring and determining the pitch of a voice signal, which process requires special technical equipment. The idea of the invention includes not only the use of the method as such but also the teaching of its technical applicability. Assessing the situation overall the Supreme Administrative Court comes to the conclusion that the present independent patent claim is of the necessary technical nature, irrespective of whether the technical solution, insofar as it emerges from the documents, consists only of the use of a known technical aid.
In view of the above, the provision of Section 1, second paragraph, Patents Act - in contrast to current Swedish practice - may not be seen as an obstacle to the patentability of the invention in question.
Setting aside the decision of the court of appeal, the Supreme Administrative Court remits the case to the Patent Office for further processing.