Tuesday, 15 September 2009

T1029/06 - On the Patentability of Environmental Impact Estimations

The application concerns aiding planning, development, design and estimation of an environmentally conscious product. In particular, a method of estimating the impact on the environment and the cost of developing multi-generation products that reuse and recycle objects from products of previous generations. [1]

The majority of the steps (life cycle modelling, predicting, evaluating) are typical tools of operational research that normally have not been considered technical in the established jurisprudence, in particular if only information is processed for the purpose of management decisions with no clear technical application. In decision T 1147/05 [3.3] it was held that “the Board accepts that a reduction of the environmental impact may in certain circumstances constitute a technical effect. One example might be an invention concerning a less energy-intensive process for the manufacture of a product. On the other hand, as a further example, if an invention is a proposal to abandon - rather than to improve - an energy-intensive process, there is no technical effect but, at most, a physical consequence. A technical effect should not depend solely on the intervention of the human mind. In the present case the invention is not a proposal for a technically superior process but a way of selecting, from a given set of improved processes, the most cost-effective ones. Whether or not the processes are actually implemented, i.e. whether there is any effect at all, even physical, is not part of the claim. This will be a later decision to be taken by a manager. Thus, the potential reductions in environmental impact that the invention serves to determine cannot be regarded as a technical effect.” [7]

The Board considers that these statements apply equally to the environmental impact estimation method in the present case. The Board does not consider that the remaining feature of the “memory unit” implies any computer implementation that would limit the claim to involve necessarily technical means (see e.g. T 388/04 [3]). [8]

The appellant relies on T 208/84 (VICOM) and T 953/94. In VICOM, the distinction was drawn at point 5 between a mathematical method and a technical process. The former is carried out on numbers and the latter is carried out on a physical entity (which may be a material object but equally an image stored as an electric signal) by some technical means implementing the method and provides as its result a certain change in that entity. In T 953/94 [6], the Board found allowable a method of controlling a “physical” process using a mathematical model, although a reference to an unspecified “physical process” might, according to more recent jurisprudence, be rejected as a “meta-specification” (see e.g. T 1227/05 [3.1.1]). However, the present case differs from these cases in that there is apparently no resultant change to or control over any physical entity or process, but merely a processing of information. The Board in T 1147/05 [3.4] reached the same conclusion in respect of VICOM for the environmental impact information system. [9]

Summarising, the Board judges that claim 1 of the main request has no overall technical character, but is merely a mixture of subject-matter excluded as such under A 52(2) and (3) EPC, specifically mathematical methods, methods for performing mental acts or doing business and presentations of information. Accordingly, the subject-matter of the claim is not an invention in the sense of A 52(1) EPC. [11]

To read the whole decision : T 1029/06