9.1.7 Assesment of features relating to meta methods for software production

Purely conceptual aspects of software design and development will normally not contribute to an inventive step according to the jurisprudence of the boards of appeal (T 983/10; see e.g. T 49/99, T 1171/06 and T 354/07).

In T 354/07 the application related to a process for producing software programs by means of a computer system. The board pointed out that software development and manufacture takes place in several stages from demand analysis through various design phases to production. All these stages essentially involve intellectual activity comparable to an engineer's design work, even if it is supported by programming tools and what is being designed is a technical system. While the design and programming of complex systems in particular require the active involvement of engineers and the application of technical knowledge, the eventual result to which each of these development phases is directly geared is not the technical solution of a technical problem but a requirements specification, a data, process and/or function model, or a program code. This assessment applies in particular to meta methods, which are concerned with the process of software production itself on an even more abstract level. For instance, they give the software developer instructions as to how the design process should be structured and organised or what modelling methods are to be used. These kinds of conceptual processes and meta methods for software production generally have no technical features relevant for patentability and thus cannot provide a basis for inventive step, unless, in an individual case, a direct causal connection can be proved with a technical effect which is relevant to the solution of a technical problem. No such technical effect could be ascertained in the case in question.

In T 42/10 and T 1281/10 claim 1 defined a method which, based on outcomes of games, calculated indications of the skills of the players by passing messages between nodes of a factor graph. The board had to determine to what extent the features of the claim had a technical character and could contribute to inventive step. The board referred to the decision of the Court of Appeal of England and Wales in Re Gale's Application [1991] RPC 305. The board's approach to assessing questions of what is and what is not technical about a computer-implemented method was, in this case, to ask the same questions as Nicholls LJ in Re Gale's Application. The first was what does the method as a whole do, and does it produce an overall technical result? The second was; if there is no overall technical result, does the method at least have a technical effect within the computer? If both questions were answered in the negative, no technical problem had been solved and there could be no inventive step. The board's view regarding technicality could be summarised as follows; the overall aim of keeping players interested is not technical. The intermediary aim of assessing and comparing playing performance is not technical. The representation of performance by probability distributions, and the updating of them, are mathematical methods. The use of factor graphs with message-passing is a matter of mathematics or abstract computer science. The board concluded that the only technical feature defined in this claim was the (computer) processor. The subject matter of claim 1, therefore, did not involve an inventive step if it would have been obvious to the skilled person, who had the task of implementing the method, to use a computer processor.

In T 1539/09 the invention related to a graphic programming language and environment that was designed to allow a user to write code without much training or expertise. The board took the view that reducing a programmer's intellectual effort was not a technical effect. This applied all the more since the effect was likewise sought for all programs developed, regardless of their purpose (see T 741/11). The board stated that the activity of programming – in the sense of writing code – is a mental act, at least to the extent that it is not used in an actual application or environment to produce a technical effect. Therefore the definition and provision of a programming language does not per se contribute to a technical solution, even if the selection of a programming language helps to reduce the programmer's intellectual effort (see also T 2270/10).

In T 1630/11 a method for simulating a multi-processor system in an electronic device was found to lack inventive step. The appellant had argued that the invention enabled users "to efficiently model and simulate a multi-processor system". The board noted that the major part of claim 1 was concerned with the expressions of a graphical programming environment which were found in T 1539/09 (point 5 of the Reasons) not to contribute to inventive step (see also T 2270/10, point 7 of the Reasons). The board followed its earlier jurisprudence according to which modifications to a programming language or system that enable the programmer to develop a program with greater ease and thus, presumably, speed and accuracy, do not make a technical contribution to the art.

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