T 42/10 – Not Amused

This is an examination appeal.

Claim 1 of the main request read:

A computer-implemented method of determining an indication of the relative skill (205) of at least a first player and a second player of a game based on the outcome of one or more such games involving those players said method comprising the steps of:

(i) arranging a processor (204) to, for each player, set statistics (200) describing a probability distribution associated with skill of that player to default values;

(ii) at the processor (204) receiving information about the outcome (201) of one of the games;

(iii) arranging the processor (204) to form and store a factor graph comprising variable nodes and factor nodes, the factor nodes having associated calculation rules, said graph being formed using the received information about the outcome, and arranging the processor (204) to instantiate at least some of the variable nodes with the statistics; and arranging the processor to form and store the factor graph such that it comprises a plurality of first groups of nodes, each first group being associated with a particular player and comprising nodes linked in series; and

(iv) arranging the processor (204) to update the statistics associated with each player by applying message passing to the factor graph using the calculation rules;

(v) arranging the processor to repeat the process of updating the statistics as further game outcomes are received

The Board found this claim to lack inventive step.

The decision has some interesting statements on technicality and contains a brief discussion of Gale’s application, a 1991 decision of the Court of Appeal of England and Wales.

[2.1] Claim 1 according to the main request defines a method that, based on outcomes of games, calculates indications of the skills of the players, by passing messages between nodes of a factor graph. It is necessary to determine in how far the features of the claim have technical character and so could contribute to inventive step.

[2.2] The [applicant], relying on T 619/02 [2.4.1], argues that the method of assessing player performance is technical by virtue of being a method of measuring.

[2.3] The board notes that T 619/02 does not say that all methods of measuring are technical. It must therefore be assessed whether the measurement can be accepted as technical in the present case.

[2.4] The term “measurement” is rather broad. It encompasses finding the spectrum of the hydrogen atom, or the salinity of sea water; but also whether one political party is more or less popular than another. In T 619/02, the measurement was of reactions to odours, and it was found to be non-technical. The [applicant] seeks to distinguish the present case, arguing that the reasons for rejecting the method in T 619/02 do not apply to the present case, because there are no psychological assessments involved.

[2.5] In the Board’s view, the lack of psychological assessments cannot, alone, be determinative. What is needed is a technical problem and a technical solution to it, i.e. a technical effect. However, judging the skill of a game player does not seem to involve a physical change at all, still less a technical effect.

[2.6] In this context, the [applicant] argues that the measurement of player performance might involve the measurement of hand-eye coordination or of reaction times. However, the claimed method does not measure reaction times, or use it to deduce information on performance. Nor does it take the information on performance and deduce anything about reaction times. The reaction time is never known. The same goes for hand-eye coordination. In fact, the claimed method is in no way limited to games in which reaction time or hand-eye coordination are important. It applies to chess as much as to football, and to poker as much as to pinball.

[2.7] The Board, therefore, sees clear reasons for considering the measurement of performance in games as non-technical.

[2.8] The [applicant’s] second argument is based on T 717/05 [5.9], in which it is stated that “amusement is the psychological purpose of a gaming apparatus and is the relevant objective technical problem to the extent that the enhanced amusement is achieved by technical features of the claim.”

[2.9] In T 717/05, the deciding Board did indeed hold that the step of monitoring outcomes of games was a technical feature, but only in combination with the step of displaying them (paragraph [5.6] with paragraph [4.5]). The displaying step was necessary, since it permitted the player to be informed about the development of the game, thus addressing the problem of maintaining interest (paragraph [5.1]). The present claim, however, does not require the players’ scores to be displayed, but only to be calculated. For this reason alone, T 717/05 does not appear to be relevant. A more basic reason is that the Board has strong doubts that amusement, even if achieved by technical (in particular, computing and displaying) means, really is a technical problem. If it were, any dull computer game could be regarded a posing a technical problem that could be solved by any less dull game. The difficulties involved in such a view are evident (the skilled person need not be skilled in a technical art; the effect would be subjective), and the decision has been largely ignored in the jurisprudence of the Boards of Appeal. T 528/07, expressly declined to follow the approach taken in T 717/05.

[2.10] The [applicant’s] third argument is that factor graphs, and the associated message passing algorithm, are technical. They address the technical problem of speeding up computation.

[2.11] In its full generality, speed of computation is a mathematical problem. It may be the case that a computer has a particular processor that is particularly good, or particularly poor, at some (class of) operations. Recasting a mathematical method so as to take advantage of what the processor does quickly, or to avoid what it does slowly, might involve technical considerations. In such a case, the recast method, when performed on that particular processor, might not be “just” mathematical but also be technical. However, not all recasting of mathematical methods in order to increase speed are technical. In the days when people looked up trigonometric functions in tables, recasting a method so as to reduce the number of times the tables had to be consulted might speed up computation, but nothing technical was happening.

[2.12] The [applicant] has not provided any evidence that there really is an increase in speed of computation. There is no analysis of the complexity of any prior art method of performing the same sort of calculation, and there is none of the complexity using factor graphs. Nor has the [applicant] provided any evidence for its assertion that the increase in speed would only be obtained on a computer, whereas calculations by hand would be slower. However, the Board also considers that, even if the increase in speed were established, it would not be an increase which solved a technical problem, and that is enough to reject the argument. According to the application […], it does not matter what sort of technical apparatus is used to perform the calculations. What matters is only the ability to carry out the necessary steps. It follows from that, that any improvement in speed is inherent in the method of calculation. It does not result from exploiting ability or avoiding some lack in the computer. At best, if the [applicant] is correct, and there is an increase in speed which only occurs on computers, it is a matter of abstract computer science.

[2.13] During oral proceedings before the board, Re Gale’s Application was briefly discussed, and the Board finds it useful to comment on it.

[2.13.1] Mr Gale had found an algorithm for calculating square roots, which he had implemented as a computer program. The court was concerned with the question of whether that was excluded under Section 1(2) of the Patents Act 1977. That provision gives effect, in UK law, to A 52(2). Lord Justice Nicholls delivered the lead judgment. He found that the program did not “embody a technical process which [existed] outside the computer,” and that although the computer “will be a better computer when programmed with Mr Gale’s instructions,” it did not “solve a ‘technical’ problem lying within the computer.”

[2.13.2] The Board’s approach to assessing questions of what is and what is not technical about a computer-implemented method, in this case, asks the same questions as Nicholls LJ in Re Gale’s Application. The first is: what does the method as a whole do, and does it produce an overall technical result? The second is: if there is no overall technical result, does the method at least have a technical effect within the computer? If both questions are answered in the negative, no technical problem has been solved and there can be no inventive step.

[2.14] The Board’s view regarding technicality can be summarized as follows.

[2.14.1] The overall aim of keeping players interested is not technical.

[2.14.2] The intermediary aim of assessing and comparing playing performance is not technical.

[2.14.3] The representation of performance by probability distributions, and the updating of them, are mathematical methods.

[2.14.4] The use of factor graphs with message passing is a matter of mathematics or abstract computer science.

[2.15] Given the Board’s conclusions regarding technicality, the only technical feature defined in this claim is the (computer) processor. The subject matter of claim 1, therefore, does not involve an inventive step if it would have been obvious to the skilled person, who has the task of implementing the method, to use a computer processor.

[2.16] It is not disputed that suitable computer processors were well known at the filing date (10 February 2006). The skilled person would have been aware that they would be able to carry out the mathematical operations involved in forming a factor graph and passing messages between nodes. Indeed, the method involves the collection of data, possibly large amounts of data, and the carrying out of calculations on it. That is just what computer processors were designed to be good at. It would, then, have been obvious to use them.

[2.17] The [applicant’s] argument that online Bayesian learning was not (well) known at the filing date does not affect the conclusion, even if correct. That is because the Bayesian learning is already part of the non-technical method the skilled person is required to automate.

[2.18] The [applicant’s] other argument, that there is a reduction in network traffic also fails to affect the Board’s conclusion. Firstly, there is no evidence of a reduction. Secondly, if there is an effect on network traffic, it is an effect that is obtained in any technical implementation that uses a communication network at all, rather than one that belongs to some particular (claimed) such implementation but not to others.

[2.19] The main request, therefore, cannot be allowed, because the method defined in claim 1 does not involve an inventive step.

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NB: There is a parallel case, T 1281/10.