While the requirement for novelty and inventive step is applied to all patent applications examined by the European Patent Office (EPO), some applications can find themselves subjected to closer scrutiny for further patentability requirements. One of these, found most often in computer-implemented inventions, is the assessment of technical character. If a feature of a claimed invention is not considered to have technical character, that feature will not contribute to the EPO’s assessment of inventive step.
In short, if a feature of a claim is determined to contribute toward producing a technical effect serving a technical purpose, then that feature will be considered by the EPO to have technical character. For example, a patent claim to the colours of a painting to be more aesthetically pleasing is very unlikely to have technical character, whereas a claim to an aircraft wing with an improved aerodynamic profile almost certainly does.
For computer-implemented inventions, the line separating technical from non-technical can get blurry. Are the elements of code serving a technical purpose? Or do they merely provide some other, subjective benefit? Detailed guidelines and a body of case law have been developed over the years to guide applicants and patent examiners in assessing the question of technical character for a variety of computer-implemented inventions, such as Graphical User Interfaces, simulation methods, encoding of image data, etc.
One type of computer-implemented invention regularly encountered is that of a data structure. In computer science, a data structure is a collection of data and the relationship between elements of said data, and can include the function calls and operations that can apply to that data. Data structures form the subject of many patent applications that seek to improve on the ability to efficiently store and quickly access different kinds of data.
According to the EPO, elements of a patent claim to a data structure can be considered to have technical character, so long as those elements relate to functional data. From the EPO Guidelines (G-II-3.6.3):
Functional data serve to control the operation of a device processing the data. They inherently comprise, or reflect, corresponding technical features of the device. Cognitive data, on the other hand, are those data whose content and meaning are only relevant to human users. Functional data contribute to producing a technical effect whereas cognitive data do not.
An example given by the EPO is a record carrier for use in a picture retrieval system; a data structure that instructs the system how to decode and access the picture from the record carrier is a functional data structure, whereas data simply describing what the picture might show (e.g. a landscape or a person) is merely cognitive content.
Recent decision T1159/15 has provided further clarification of the EPO approach to data structures, by further consideration of what functional data might mean.
As summarised by the Board (see reasons 1), the independent claim related to creating mathematical models based on stored information, variables and assumptions (conditions). The variables and assumptions are modified and several candidate models are generated and evaluated. Based on these evaluations, one of these candidate models is selected as the final model and is used for forecasting purposes.
In first instance proceedings, the examining division refused the application because they considered the computer-implemented elements of the claim to relate to a mere business method (and, as such, purely non-technical and cannot contribute to demonstrating the existence of an inventive step).
The Board of Appeal disagreed with this conclusion, and drew a distinction between the two types of data that were stored by the multi-dimensional data structure of the claim (reasons 5, emphasis added):
5. In the board’s view, the defined data storage contains two types of data. Firstly, data encoding cognitive content, such as information related to variables, assumptions etc. These data are used in the generation of the models. Secondly, the aggregation rules, which are not related to any cognitive content but are instructions related to the operation of the system when responding to queries. These data could thus be characterised as “functional data” (see also T 1194/97, OJ EPO 2000, 575, Headnote II and Reasons 3.3 to 3.5; T 425/03, Reasons 6.2 and 6.3).
5.1 The features of claim 1 identified above define thus a particular multidimensional data structure with a hierarchy of levels for each dimension, in which data are stored at the lowest level of each dimension. Moreover, the data structure stores instructions on how the stored data are to be aggregated up to higher levels of each dimension (see also paragraphs  and  of the application).
In the board’s view, these features provide for a technical effect that goes beyond the “normal interactions” within a computer executing a business method, because they define a particular way in which data are stored, retrieved and processed, which affects the storage space used and the speed of processing.
This would be a “further technical effect” so that these features are to be regarded as technical features and not as part of the non-technical (business) features of the claim.
The Board was then able to conclude that the claimed data structure had technical character, and therefore can contribute to inventive step. The application was remitted back to the examining division for further examination.
Securing grant of a patent for a computer-implemented invention in the business methods space can be difficult, not least because there can be disagreement whether claimed features truly have technical character or not. As the present decision shows, it helps, as a first step, to carefully distinguish between those elements of the claim that are grounded purely in business concerns, and those elements of the claim that are directed toward how the computer system is directed to function.
The decision provides a helpful clarification for those pursuing applications toward data structure inventions at the EPO, not least by giving a further example of what kinds of data structure can be considered to control the operation of a computing device (and therefore be considered functional data).
The decision T1159/15 can be read in full here.