Résumé de EPC2000 Art 052 pour la décision T0761/20 du 22.05.2023

In T 761/20 the invention related to automated assessment of scripts written in examination, in particular English for Speakers of Other Languages (ESOL) examinations. The board held that though G 1/19 was related to computer-implemented simulations, its reasons apply to computer-implemented methods other than simulations as well. The board assumed that the claimed invention served the purpose of supporting its users in evaluating linguistic competences. The question remained whether the assessment of linguistic competences, or maybe merely providing a grade, was a technical purpose. The board held that what was decisive, according to established case law of the Boards of Appeal, was whether the invention made a contribution which may be qualified as technical in that it provides a solution to a technical problem. If this was the case, a contribution to a field of technology could be said to also be present. It was noted that the "field" of this contribution may be different from the one to which the patent more generally relates: for instance, inventions within the broad field of "educational technology" could make contributions in the field of computer science. In G 1/19, the Enlarged Board followed its earlier case law and "refrain[ed] from putting forward a definition for 'technical'", because this term must remain open. Nonetheless, the Enlarged Board provided considerations as to what may be considered technical. The referring board in G 1/19 had suggested that a technical effect might require a "direct link with physical reality, such as a change in or a measurement of a physical entity". The Enlarged Board in G 1/19 accepted that such a "direct link with physical reality [...] is in most cases sufficient to establish technicality" and, in this context, that "[i]t is generally acknowledged that measurements have technical character since they are based on an interaction with physical reality at the outset of the measurement method". It also stressed that an effect could also be "within the computer system or network" (i.e. internal rather than "(external) physical reality"). It recalled that potential technical effects might also be sufficient "effects which, for example when a computer program [...] is put to its intended use, necessarily become real technical effects". And it also considered that calculated data, while "routinely raising concerns with respect to the principle that the claimed subject-matter has to be a technical invention over substantially the whole scope of the claims" might contribute to a technical effect by way of an implied technical use, "e.g. a use having an impact on physical reality". While the Enlarged Board of Appeal thus found that a direct link with physical reality may not be required for a technical effect to exist, it did, in this board's view, confirm that an at least indirect link to physical reality, internal or external to the computer, is indeed required. The link can be mediated by the intended use or purpose of the invention ("when executed" or when put to its "implied technical use"). Returning to the case at hand, the board found that automated script grading, by itself or via its intended use for evaluating linguistic competences, did not have an implied use or purpose which would be technical via any direct or indirect link with physical reality. The claimed computer-implemented method of automated script grading did not provide a contribution to any technical and non-excluded field, be it by way of how the automation is carried out, or by way of its use; an inventive step according to Art. 56 EPC could therefore not be acknowledged.