Thursday, 22 August 2013

T 1119/09 – Mere Instructions

This is an examination appeal.

Claim 1 of the main request on file read (in English translation):
1. Apparatus for controlling or regulating a system based on a basic object model which represents the functionality of a runtime system and/or of the system to be controlled or to be regulated, comprising a data processing device for processing a first object type having a predetermined data structure which is part of the basic object model, and which can be instantiated for objects, characterised in that the first object type comprises a type data field (DV) and in that the data processing device allows to store additional allocation information of the object type relating to an additional tool which is not part of the basic object model, in the type data field.
Board 3.5.05 dismissed all requests for lack of clarity.

It nevertheless discussed the underlying technical contribution and inventive step.

*** Translation of the German original ***

[6] The application emphasises that the object oriented software is to be used for controlling industrial processes but nevertheless leaves the nature of the system to be controlled as well as the kind of programme control essentially undefined.

[6.1] As a matter of fact, the Board is of the opinion that the structure of the claimed control apparatus, which comprises a runtime and an engineering system, is independent of the system to be controlled and of the precise way in which the control is performed. Moreover, this partition does not depend on whether the runtime or engineering system us used for developing an industrial control or another application, such as e.g. a company software. Rather, this partition is typical for programme development contexts of all kinds, as they were known well before the priority date of the present application.

[6.2] The appellant argued that it was specific for industrial control systems that they have to be developed during operation. Thus the claimed extension by an additional tool that had not been foreseen from the very beginning, such as an editor, was an integral part of such a control system and, therefore, had to be considered to be technical.

[6.3] The Board does not see any reason to doubt that the development of an industrial control during operation can be necessary, although it should be noted that the independent claims of all requests do not state when, with respect to the run time of the control system, the allocation to an new additional tool or editor is to be performed. However, the development during operation is not specific to industrial controls but is also relevant and commonplace for other applications such as, for instance, in the banking and insurance industries. More importantly, the Board is of the opinion that the precise moment of use of the claimed invention does not change the fact that the allocation of objects to a new tool, which is an aspect of programme development, has to be allocated to the engineering system and not to the runtime system or the system that is to be modelled.

[6.4] Thus the Board comes to the conclusion that the claimed invention does not solve any specific problem belonging to the field of industrial control and, therefore, does not make any technical contribution to this field.

[6.5] Thus the indication in the claim of an unspecific application “for controlling or regulating” as such is not sufficient for establishing the presence of an inventive step.

[7] As against a known industrial control such as the one disclosed in the application […] claim 1 of the main and first auxiliary requests provides an apparatus by means of which an “additional tool which is not part of the basic object model” can be allocated to an object type or at least to individual object instances.

[7.1] The application describes this mechanism as an alternative to a so-called conventional intervention on the original object model, which required the introduction of new object types […]. The new allocation of an “additional tool” to given objects was said to change the overall behaviour of the control system. However, this change does not depend on whether the allocation is done in the conventional way – which is said to be relatively laborious (aufwändig, sic) […] or according to the invention. Consequently, the effect related to the claimed allocation mechanism does, in particular, not depend on whether the new “additional tool” is an editor or another application, and on whether it is allocated to a “technological object type” or another object type.

[7.2] The decision to allow (or enforce, as the case may be) the access to certain objects by means of certain tools determines how the software developer has to proceed when creating software. The Board is of the opinion that such decisions qualify as instructions to the software developer which as such do not have any technical effect (see also T 354/07 [4, last two paragraphs]).

[7.3] Thus at best the means by which the desired allocation is implemented in a given system – in the present case the provision of a type data field of the object type (main request) and its optional use for generating an object instance (auxiliary request) - can make a technical contribution.

[7.4] However, the appellant did not submit that these means did make a technical contribution of any kind, nor which contribution this could be, but only based the presence of a technical contribution on the field of application, i.e. industrial control. As explained above, the Board is of the opinion that the claimed subject-matter does not make any technical contribution in this field, and that the limitation to this field of application as such cannot justify the presence of an inventive step. Moreover, the Board cannot see any apparent technical contribution made by said means.

[7.5] Thus the Board has no reason to deviate from its provisional opinion expressed in the annex to the summons, according to which the main and auxiliary requests did not involve any inventive step, A 56 EPC 1973. The Board adds that none of the additional features according to the auxiliary requests 2 to 5 filed during the oral proceedings allows to overcome this objection.

Should you wish to download the whole decision (in German), just click here.

The file wrapper can be found here.