3.5.3
Schemes, rules and methods for doing business

Subject-matter or activities which are of financial, commercial, administrative or organisational nature fall within the scope of schemes, rules and methods for doing business, which are as such excluded from patentability under Art. 52(2)(c) and (3). In the rest of this section, any such subject-matter or activities will be subsumed under the term "business method".

Financial activities typically include banking, billing or accounting. Marketing, advertising, licensing, management of rights and contractual agreements, as well as activities involving legal considerations, are of a commercial or administrative nature. Personnel management, designing a workflow for a business process or communicating postings to a target user community based on location information are examples of organizational rules. Other activities typical of doing business concern operational research, planning, forecasting and optimisations in business environments, including logistics and scheduling of tasks. These activities involve collecting information, setting goals, and using mathematical and statistical methods to evaluate the information for the purpose of facilitating managerial decision-making.

If the claimed subject-matter specifies technical means, such as computers, computer networks or other programmable apparatus, for executing at least some steps of a business method, it is not limited to excluded subject-matter as such and thus not excluded from patentability under Art. 52(2)(c) and (3).

However, the mere possibility of using technical means is not sufficient to avoid exclusion, even if the description discloses a technical embodiment (T 388/04, T 306/04, T 619/02). Terms like "system" or "means" are to be looked at carefully, because a "system" might e.g. refer to a financial organisation and "means" to organisational units if it cannot be inferred from the context that these terms refer exclusively to technical entities (T 154/04).

Once it is established that the claimed subject-matter as a whole is not excluded from patentability under Art. 52(2) and (3), it is examined with respect to novelty and inventive step (G-I, 1). The examination of inventive step requires an assessment of which features contribute to the technical character of the invention (G-VII, 5.4).

Where the claim specifies a technical implementation of a business method, the features which contribute to the technical character of the claim are in most cases limited to those specifying the particular technical implementation.

Features which are results of technical implementation choices and not part of the business method contribute to the technical character and thus have to be duly taken into account. This is illustrated with the following example: The claim defines a computerised networked system which allows customers to obtain audio-visual content about selected products using computers installed at each sales outlet of a company, all connected to a central server with a central database storing the audio-visual content as electronic files. The distribution of the electronic files from the central server to the sales outlets could be technically implemented either by enabling download of individual files directly from the central database to the computer on request of a customer or, alternatively, by transferring a plurality of selected electronic files to each sales outlet, storing these files in a local database of the sales outlet and retrieving the corresponding file from the local database when audio-visual content is requested by a customer at the sales outlet. Choosing one implementation among these two options lies within the competence of a technically skilled person, such as a software engineer, as opposed to, for example, specifying that the set of audio-visual contents offered is different for each sales outlet, which would typically be within the competence of a business expert. Features of the claim specifying any of these two possible technical implementations contribute to the technical character of the invention, whereas features specifying the business method do not.

In the case of claims directed to a technical implementation of a business method, a modification to the underlying business method 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. In the context of an automation of a business method, effects which are inherent in the business method do not qualify as technical effects (G-VII, 5.4.1).

For instance, an automated accounting method that avoids redundant bookkeeping may be considered to require fewer computer resources in terms of computer workload and storage requirements. These advantages, in so far as they result from a reduction of the number of operations to be performed and the amount of data to be considered due to the business specification of the accounting method, are inherent to the accounting method itself and hence do not qualify as technical effects.

Another example is based on an electronic auction that is performed by successively lowering the price until the price is fixed by the remote participant who first transmits a message. Since messages may be received out of order due to possible transmission delays, each message contains timestamp information. Changing the auction rules to obviate the need for timestamp information amounts to circumventing the technical problem of transmission delays rather than solving it with technical means (T 258/03). As a further example, in a method for carrying out electronic financial transactions with credit cards at a point of sale, not requiring the transmission of the name or address of the buyer to authorise the transaction may result in saving time and reducing data traffic. However, this is not a technical solution to the technical problem of the bandwidth bottleneck of communication lines and the limited capacity of server computers, but an administrative measure which does not contribute to the technical character of the claimed subject-matter.

The mere fact that the input to a business method is real-world data is not sufficient for the business method to contribute to the technical character of the claimed subject-matter, even if the data relate to physical parameters (e.g. geographic distances between sales outlets) (T 154/04, T 1147/05, T 1029/06). See also G-II, 3.3.

In a computer-implemented method for facilitating managerial decision-making, automatically selecting from a set of business plans the most cost-effective one which also enables meeting certain technical constraints (e.g. to achieve a targeted reduction in environmental impact) is not considered to make a technical contribution beyond the computer-implementation.

The mere possibility of serving a technical purpose is not enough for a method to contribute to the technical character of the invention. For example, a claim to a "method of resource allocation in an industrial process" encompasses pure business processes and services in finance, administration, or management, without limiting the method to any specific technical process due to the breadth of meaning of the term "industry".

The result of a business method may be useful, practical or saleable but that does not qualify as a technical effect.

Business method features, e.g. administrative features, can be found in different contexts. For example, a medical support system may be configured to deliver information to the clinician on the basis of data obtained from patient sensors, and only if such data is not available, on the basis of data provided by the patient. The prioritisation of the sensor data over the data provided by the patient is an administrative rule. Establishing it lies within the competence of an administrator, e.g. the head of the clinic, rather than within that of an engineer. As an administrative rule with no technical effect, it does not contribute to the technical character of the claimed subject-matter and may be used in the formulation of the objective technical problem as a constraint that has to be met when assessing inventive step (G-VII, 5.4). For further examples of applying the problem-solution approach to assess inventive step for subject-matter comprising business-method features, see G-VII, 5.4.2.1-5.4.2.3.

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