*This is an examination appeal.*

*Claim 1 of the third auxiliary request on file read:*

1. A computer-implemented method of predicting outcomes of marketing campaigns, the method comprising:determining a response probability for each of a plurality of customers, the customers being intended targets of a marketing campaign;determining a response value for each of the customers that indicates a predicted value of a response to the marketing campaign by the customer; andpredicting an outcome of the marketing campaign using the response probability and the response value,wherein the marketing campaign comprises at least first and second campaign steps, and wherein predicting the outcome of the marketing campaign further comprises:using the response probabilities for the plurality of customers to predict a number of responses to be received if the first campaign step were performed toward the plurality of customers;selecting a target group (168) of customers from the plurality of customers using the response probabilities, where a customer is included in the target group if a randomly generated number is less than the customer’s response probability, the target group (168) being substantially equal to the predicted number of responses; andpredicting an outcome of performing the second campaign step toward the target group (168); andwherein at least one campaign step (206) in the marketing campaign comprises a plurality of alternative campaign elements (207, 208, 209),further comprising assigning the customers to the campaign elements (207, 25 208, 209) using an optimizing algorithm, andwherein the optimizing algorithm assigns and reassigns the customers to the campaign elements (207, 208, 209) while evaluating the predicted outcome of the marketing campaign, but does not reassign a customer to a campaign element to which the customer has previously been assigned, and where each assignment of a customer to a campaign element is recorded in a binary map, such that the optimizing algorithm provides a best goal value for the marketing campaign, wherethe customer reassignments are recorded in a list after finding the most recent best goal value, wherethe optimizing algorithm is terminated after a user-defined number of customer reassignments does not improve the most recent best goal value, and whereupon said termination, the assignment of customers to campaign elements corresponding to the best goal value is determined by reversing all the assignments made since finding the most recent best goal value.

[5] In the light of A 52(1)(2)(3), an inventive step according to A 56 EPC 1973 requires a non-obvious technical contribution (T 641/00 [headnote 1]; T 1784/06).

The use of computers for automation purposes is technical but commonplace.

A mathematical algorithm may become a technical means, i.e. it may go beyond a mere mathematical contribution, if it serves a technical purpose (T 1227/05 [3.1-2]).

[6] However, anticipating a maximum revenue or profit value […] of a marketing campaign is a commercial rather than a technical purpose. Therefore, the iterative mathematical algorithm of claim 1 remains a mere mathematical contribution which does not enter into the examination for an inventive step.

[6.1] The appellant argues that the choice of algorithm is based on technical considerations as it takes account of technical (e.g. memory) limitations of computers and diverges from a human approach.

[6.2] In decision T 1227/05 [3.2.5] it was held that (the sole) processing speed was not a suitable criterion for distinguishing between technical and non-technical method steps since it was always possible to conceive of a slower algorithm than the one claimed. Similarly, the sole amount of memory a computer-implemented algorithm requires is equally unsuitable for determining whether or not a method step contributes to the solution of a technical problem since it is always possible to imagine an algorithm demanding more memory. Furthermore, whether or not an algorithm is similar to what a human being would do may play a role for the examination for inventive step, but this examination presupposes that the technicality of the feature has been established.

[6.3] The appellant further argues that the choice of algorithm is not part of the requirements supplied to the skilled person by the business manager, and concludes that the choice of algorithm is tied to a particular manner of (computer-)implementation.

The Board agrees that the mathematical algorithm is not provided by the business manager who is only interested in an economic forecast on which he can base his decision for a marketing campaign.

However, the Board does not agree with the appellant’s conclusion that the algorithm is provided by the implementing programmer. In the absence of a technical overall effect and purpose, the algorithm is provided by a mathematician for mathematical and ultimately commercial purposes. Mathematical definitions do not become technical by defining commercial relationships. For example, response probabilities and response values of customers are based on past customer behaviour […].

[6.4] As to the implementation of the algorithm, no internal function of the computer requires a non-obvious consideration to track and reverse incremental changes in the form of reassignments.

[6.4.1] The random number mentioned in claim 1 solves no problem other than splitting a large list of customers into two partial lists, without achieving any external technical effect or implying any technical consideration of the internal functioning of a computer.

On the implementation level, random number generators are well-known. The application implicitly confirms that finding as it is silent on any technical detail of generating random numbers.

[6.4.2] A binary map of flags settable for each possible customer-activity assignment […] does not diverge fundamentally from a human’s approach when testing a multiplicity of assignments: a human would obviously mark (i.e. flag) tested assignments so as to test other assignments next.

Nor does the mathematical or commercial meaning of the flagged information imply any non-obvious technical modification of general computer functions.

[7] The step that “the optimising algorithm is terminated after a user-defined number of customer reassignments does not improve the most recent best goal value” is considered next.

As mentioned above, the innovative potential of the algorithmic scheme can be left aside since it does not serve any technical purpose and, thus, does not contribute to the technical character of the claimed method and cannot enter into the examination for an inventive step.

Said lack of a technical purpose is not altered by defining a mathematical criterion for terminating the algorithm.

[8] The Board concludes that the method according to claim 1 of the third auxiliary request does not involve an inventive step over a general computerised method for processing data according to any existing mathematical algorithm and, thus, does not meet the requirements of A 56 EPC 1973.

[9]

*A fortiori*, the broader versions of claim 1 (main request, first and second auxiliary requests) also lack an inventive step.*Should you wish to download the whole decision, just click here.*

*The file wrapper can be found here.*

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