The European Patent Office is still developing its case law on inventions which involve the collection and use of data. A few years ago, the Enlarged Board of Appeal in case G1/19 reviewed a patent application relating to the simulation of the movements of pedestrians. It concluded that the application was not patentable as the data resulting from a claimed process had relevant uses other than the use with a technical device (such as for controlling a technical device). The Board added that the analysis under Article 56 EPC revealed that a technical effect would not achieved over substantially the whole scope of the claimed invention. The claims were not allowable.
A more recent case T1790/17 reviewed by the Board of Appeal looked at this aspect in more detail. The application is related to the collection of data in the form of consumer feedback on the use of a product. The initial claim filed by the applicant was directed to a method for redesigning one or more product or process parameters of a first manufactured article
The Board of Appeal noted, however, that the claim encompassed non-technical subject-matter, since the determined parameters encompassed non-technical data and, thus, cannot imply a technical effect. However, the Board allowed an amendment to the claim to include a reference to a method for re-designing and manufacturing a product. The addition of the reference to the manufacture of the product was sufficient, according to the board, to remove the barrier to patentability. The Board then remitted the case back to the examination division to examine the case for novelty and inventive step.
Modern innovation relies heavily on gathering and processing of data. The European and other patent offices have generally been reluctant to grant patents on inventions based on insights obtained from data. The current case shows, however, that patents directed to the use of the gathered data are valid, as long as the usual requirement of novelty and inventive step are fulfilled.
