Claim 1 on file in this examination appeal read:
1. A method of analyzing a DNA sample that contains genetic material from at least two individuals to determine a probability distribution of genotype likelihood or weight in the sample, comprising the steps:(a) amplifying the DNA sample to produce an amplification product comprising DNA fragments, wherein each allele at a locus is amplified to generate relative amounts of DNA fragments of the alleles that are proportional to the relative amounts of template DNA from the alleles in the DNA sample, and wherein the amplification product produces a signal comprising signal peaks from each allele the amounts of which are proportional to the relative amounts of the alleles;(b) detecting signal peak amounts in the signal and quantifying the amounts using quantifying means that include a computing device with memory to produce DNA length and concentration estimates from the sample;(c) resolving the estimates into one or more component genotypes using automated resolving means, said resolution into one or more genotypes including solving the coupled linear equations d = G.w+e for the relevant loci (i), individuals (j) and alleles (k), in which d is a column vector which describes the peak quantitation data of a DNA sample from the signal, G is a matrix that represents the genotypes in the DNA sample, with a column j giving the alleles for individual j, w is a weight column vector that represents relative proportions of template DNA in the sample and e is an error vector, wherein the solution includes calculation of data variance sigma² from the linear model d = G.w+e together with the global minimal solution Pd = Gw0, where Pd is the perpendicular projection point which is the closest point to d in mixture space C(G) and w0 is the minimum weight vector, using linear regression methods, and calculating a probability distribution of the data assuming a normal distribution and that the error is unbiased, so that E(e) = 0, but has a dispersion D[e] = sigma²V in which V is the covariance matrix of the data; and(d) determining, using the probability distribution of the data, a probability distribution of genotype likelihood or weight in the DNA sample.
The discussion of novelty (over A 54(3) document D6) is interesting.
When considering a virtual objection that might be raised, the Board answers a question which, as I vividly remember, troubled some colleagues and myself when we prepared for the EQE: can non-technical features establish novelty?
 In the decision of the examining division, novelty of claim 1 of the set of claims filed with the letter of 15 February 2007 was denied in view of document D6 which describes a method of analysing a DNA mixture sample that contains genetic material from at least two individuals.
 Document D6 is a European patent application filed by the present appellant and published on 29 August 2001, i.e. after the priority date of the application at issue (2 February 2001). Furthermore, it has a priority date of 15 February 2000, the validity of which has not been challenged by the appellant. Therefore, its content is considered as comprised in the state of the art pursuant to A 54(3).
 Both the method according to claim 1 and the method of document D6 involve (i) an amplification step wherein as a result of the DNA amplification a signal is produced which comprises signal peaks, (ii) a step of detecting the peak amounts in the signal, (iii) a step of quantifying the amounts to produce DNA length and concentration estimates, and (iv) a resolution step which involves a mathematical method basically consisting in representing the estimates in a linear equation, deriving a solution from the linear equation, and resolving the DNA mixture into its components. The methods differ essentially in that in the method according to claim 1, (i) the linear matrix equation ‘p = G x w’ used in document D6 to represent the linear effect of the concentration estimates – where p is a column vector which describes the peak quantitation data of a DNA sample from the signal, G is a matrix that represents the genotypes in the DNA sample and w is a weight column vector that represents relative proportions of template DNA in the sample - has been amended to include an error vector which models measurement error (see paragraph  of the published patent application) and reads ‘d = G.w + e’, and (ii) the solution includes calculation of data variance sigma² from the linear model ‘d = G.w + e’ together with the global minimal solution ‘Pd = Gw0’.
 The argument could be made that the distinguishing features described above are of non-technical nature as being a mathematical method or a method for performing mental activities, and that, in view of the established case law according to which features that do not contribute to the technical character of an invention and do not interact with the technical subject-matter of the claim for solving a technical problem, have to be ignored when assessing inventive step, such features should equally be ignored when assessing novelty. The Board therefore examines whether or not the distinguishing features in the present case make a technical contribution.
 Both the distinguishing features (i) and (ii) aim at ascertaining the reliability of the claimed method for analyzing DNA samples containing genetic material from two or more individuals and for determining the genotypes involved. By providing estimates of the error ‘e’, estimates of the variances and standard deviations can be computed from the data using the global minimal solution ‘Pd = Gw0’ and these values can be used to estimate probabilities. This results in a quantitative estimate of the quality of the solution […]. Thus, the distinguishing features constitute a means for improving the confidence of the genotype estimate of the quantitative method analysis of document D6 […]. The board therefore considers that the distinguishing features contribute to the technical character of the claimed invention.
 In decision T 784/06, the present Board in a different composition had to assess the inventive activity of a five-step method of determining the genotype of a locus within genetic material obtained from a biological sample. The method as claimed was regarded as a mix of technical features (step A) and non-technical features relying on the performance of mental activities based on the application of mathematical methods (steps B to E), the latter features being argued by the patentee to be core features of the invention. It was found that the disclosure of the invention was of such a general nature that it deprived the skilled person of the information he/she needed to understand how to proceed from the first reaction value collected in step A through steps B, C and D to the determination on a probabilistic basis of the genotype of step E. Thus, the Board came to the conclusion that the technical activity of step A did not interact with the mental activities of steps B to E to lead to a tangible technical result and therefore had to be ignored in the assessment of inventive step.
 The Board considers that the present case clearly differs from the case underlying decision T 784/06. In contrast to the vagueness of the disclosure of the invention in appeal case T 784/06, the description of the present patent application makes it sufficiently clear how the distinguishing features (i) and (ii) of the method of claim 1 should be implemented and how they interact with the remaining steps of the claimed method in order to provide a common technical result, namely a genotype estimate with an improved confidence compared to the quantitative method analysis known from the prior art.
 The above consideration leads the Board to consider that the distinguishing features have to be taken into account when assessing novelty of claim 1 and, therefore, it concludes that the method of claim 1 is new.
As claims 2 to 21 are dependent on claim 1, the request as a whole complies with the requirements of A 54.
The Board then remitted the case for examination of inventive step.
I have to admit that I do not find the analogy reasoning of point  particularly persuasive. What is true for inventive step does not have to apply to novelty.
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