VIETNAM - TRANSLATIONS OF PATENT GUIDELINES FOR INVENTIONS RELATING TO COMPUTER PROGRAMS

Vietnam – translations of Patent guidelines for inventions relating to Computer programs

CategoriesHighlights, Legal News, Trends and IP Practice in Vietnam

Like many other countries, in Vietnam, pure computer programs are not patentable but rather protected by the copyright law. However, certain computer programs are still eligible for patent protection.

The examination of computer programs is guided by Article 5.8.2.5 of the Vietnam Guidelines for Patent Examination. To supplement the provisions, on 31 December 2021 the Intellectual Property Office of Vietnam issued Annex I which contains additional guidelines.

As to an overview of this issue, please see our article at: https://investip.vn/vietnam-additional-patent-guidelines-for-inventions-relating-to-computer-programs/

Below are our English translations of Article 5.8.2.5 and Annex I mentioned above.

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Translation of Article 5.8.2.5

Article 5.8.2.5: Computer programs

An invention relating to computer programs is a form of “computer-implemented invention”, this expression is intended to cover claims which involve computers, computer networks or other programmable apparatus whereby prima facie one or more of the features of the claimed subject-matter are realized by means of a program or programs.

Although computer programs are excluded from patentability, if the claimed subject-matter has a technical character and is indeed a technical solution for solving a technical problem by a technical means to produce a technical effect, it can be patentable. For example, a data processing operation controlled by a computer program can, in theory, be equally implemented by means of special circuits, and the execution of a program always involves physical effects, e.g. electrical currents, such normal physical effects are not themselves sufficient to make the computer program have a technical character. However, if a computer program, when running on a computer, is capable of bringing about a further technical effect going beyond these normal physical effects, it is not excluded from patentability. This further technical effect may be known in the prior art. The said technical effect may be found e.g. in the control of an industrial process or in processing data that represents physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and can, for example, affect the efficiency or security of a process, the management of computer resources or the rate of data transfer in a communication link. As a consequence, a computer program may be considered to be patentable if the program, when running on a computer, can bring about a further technical effect in addition to the normal interactions between the program and the computer.

However, even in the case of the said patentable computer program, in the claims, the subject-matters which their designations are presented by terms such as “computer program”, “computer software”, “computer program/software product”, ” program-carrying signal”, and the like are not acceptable. Computer programs can be protectable in the forms of subject-matters, for example, a method of operating a normal apparatus, an apparatus set up to perform a method, a readable medium storing a program to perform a method.

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Translation of Annex I

Annex I

GUIDELINES ON DETERMINATION OF SUBJECT-MATTERS PATENTABLE AS INVENTION RELATING TO COMPUTER PROGRAMS

(Attached to Decision No. 6193/QD-SHTT dated 31 December 2021 of the Intellectual Property Office of Vietnam)

1. Introduction

The assessment of whether a subject-matter claimed in a patent application relating to a computer program is protectable as an invention is stipulated in Article 5.8.2.5 of the Guidelines for Patent Examination issued together with Decision No. 487/QD-SHTT dated 31 March 2010 of the Director General of the Intellectual Property Office of Vietnam, amended and supplemented according to Decision No. 5196/QD-SHTT dated 31 December 2020. Accordingly, this subject-matter is patentable if a program (software) when running on a computer (hardware) produces a technical effect other than normal interactions between the program and the computer. Article 5.8.2.5 of the Guidelines for Patent Examination also gives some examples of further technical effects such as controlling an industrial process, processing data representing physical entities, or performing internal functions of a computer or its interfaces under the influence of the program.

Computer programs are being applied more and more widely in many areas of life to serve various needs and purposes including non-technical purposes. In practical examination, situations where the computer program-related subject-matter includes both technical (e.g. hardware-related) and non-technical (implemented by the software) features tend to increase. In many cases, it is not easy to determine whether such subject-matter has technical characters or to determine whether there is a technical effect other than the normal interactions between the program and the computer.

This Annex is intended to supplement guidelines for a better understanding of the provisions of Article 5.8.2.5 of the Guidelines for Patent Examination, in particular an explanation of a further technical effect, some of the common features that contribute to the technical character of the invention to produce a further technical effect and how to process in the examination procedure.

2. Assessment of technical character in the formality examination and substantive examination stage

When considering a subject-matter including technical features, e.g. hardware-related such as computers, computer networks, memory or data processing representing physical entities such as parameters, control values ​​of an industrial process implemented by software, and non-technical features, e.g. related to sales, insurance, selection of candidates for a job, booking, managing or processing data of money value, business data, graphs, etc., to determine whether the interaction between the program and the computer produces a further technical effect, it is usually required to fully understand the invention, thereby analyzing the features in the claimed subject-matter. To do this, an examiner must carefully study the claims and related contents in the description and such amount of work can only be done during the substantive examination stage.

During the formality examination stage, a computer program-related claimed subject-matter if containing at least one technical feature, for example a hardware-related feature or data-processing feature representing the physical entities, may be temporarily accepted. An assessment of whether the subject-matter has actually a technical character and therefore can be protectable as an invention will be carried out during the substantive examination stage.

Therefore, an application will be validly accepted if its claims contain the following subject-matters, for example:

1. A method for a purpose implemented by a computer including steps: step A, step B, step C.

2. A processing device adapted to perform the method according to claim 1.

3. A computer-readable storage medium storing a program to execute the method according to claim 1.

However, if the claims contain the subject-matters which their designations are represented by terms such as “computer program”, “computer software”, “computer program/software product”, ” program-carrying signal” …, the examiner should issue an Office Action to disapprove such subject-matters according to the provisions of Article 5.8.2.5 of the Guidelines for Patent Examination.

Example 1:

A method of incentivizing customers to become loyal customers by offering discounts on future purchases.

It is assumed that in the description, the above-mentioned method is presented in the form of computer-implemented, however, the claimed subject-matter in this example does not contain any technical features and is only related to a mere business method, thus belonging to the form of excluded subject-matter according to Article 59.2 of the Law on Intellectual Property. The examiner should issue an Office Action to disapprove in the formality examination stage.

Example 2:

The method is implemented by a computer with a database to store customer data that has made a previous purchase to apply a discount on the next purchase.

The subject-matter relating to computer program and having specific hardware-related technical features such as computers and databases will therefore be accepted in the formality examination stage.

In the substantive examination stage, the examiner should assess whether the subject-matter has a technical character, in particular whether the combination of technical and non-technical features produces a further technical effect.

3. Examples of other technical effects

In case a computer program-related subject-matter has a technical character other than that it is computer-implemented, a corresponding computer program that implements the features of this subject-matter will produce a further technical effect when running on the computer. For example, a computer program which implements a method for controlling an anti-lock braking system (ABS) in a car, determining emissions by an X-ray device, compressing video, restoring a distorted digital image, or encrypting communications will bring about a further technical effect when it is run on a computer, that effect is anti-lock braking in cars, emission detection, video compression, distorted digital image recovery, communication encryption.

Furthermore, if a computer program is designed based on specific technical considerations the internal functioning of the computer on which it is to be executed, such as being adapted to the specific architecture of the computer, it may be considered to produce a further technical effect. For example, computer programs implementing security measures to protect boot integrity or countermeasures against power analysis attacks have a technical character since they rely on a technical understanding of the internal functioning of the computer. Similarly, the computer programs controlling the internal functioning or operation of a computer, such as a processor load balancing or memory allocation, normally produce a further technical effect, that is load balancing of the processor or memory allocation.

Programs for processing code at a low level, such as builders or compilers, may well have a technical character. For example, when building runtime objects from development objects, regenerating only those runtime objects resulting from modified development objects contributes to produce the further technical effect of limiting the resources needed for a particular build.

However, a computer program for a non-technical purpose that requires less computation time than a known program for a similar purpose will not produce a further technical effect. Similarly, comparing a computer program to the way a human performs a task would not be an appropriate basis for judging whether the program has a technical character.

The subject-matter of a computer program-related invention cannot be considered to have a technical character only because the computer program is designed so that it can be implemented automatically by the computer. Other technical considerations are required, often related to technical considerations of the internal functioning of a computer, in addition to simply finding a computer algorithm to perform a task. They must be reflected in the claimed features that produce a further technical effect.

4. Some forms of subject-matters related to computer program

This section refers to some forms of subject-matters related to a computer program that are stipulated in Article 5.8.2.5 of the Guidelines for Patent Examination, in particular the forms in which the computer program implements features related to mathematical methods; artificial intelligence and machine learning; simulation, design or modelling; schemes, rules and methods of playing games; business methods; information modelling, activities of programming and programming languages; data retrieval, formats and structures; systems of database management and information retrieval; presentations of information; user interfaces. For each form of subject-matter related to a computer program, there are specific instructions on how to determine whether the features implemented by the program make a technical contribution and produce a technical effect.

4.1. Implementation of mathematical method

A mathematical method may contribute to the technical character of the invention when it is applied to a technical field with a specific technical purpose, e.g. analysing sound, digital image; encoding and decoding data for transmission or storage; providing a genotype estimate based on an analysis of DNA samples; providing a medical diagnosis by an automated system processing physiological measurements, and/or is adapted to a specific technical implementation, for example adapting a polynomial function reduction algorithm for exploiting word size translation steps that match the word size of computer hardware are based on technical considerations of the internal functioning of a computer and can contribute to creating a technical effect of an efficient hardware implementation embodiment of this algorithm.

Furthermore, the mere fact that a mathematical method may serve a technical purpose is not sufficient, either. The claim is to be functionally limited to the technical purpose, either explicitly or implicitly by establishing a sufficient link between the technical purpose and the mathematical method steps, for example, by specifying how the input and the output of the sequence of mathematical steps relate to the technical purpose so that the mathematical method is causally linked to a technical effect.

Defining the nature of the data input of the mathematical method does not necessarily imply that the mathematical method contributes to the technical character of the invention. Whether a mathematical method serves a technical purpose is determined primarily by the direct technical relevance of the results it provides.

If the mathematical method does not serve a technical purpose and the claimed technical implementation does not go beyond a generic technical implementation, the mathematical method does not contribute to the technical character of the invention. In such a case, it is not sufficient that the mathematical method is algorithmically more efficient than prior-art mathematical methods to establish a technical effect

Example:

A method is implemented by a computer to control a specific physical process by analyzing the functional relationship between two parameters, the method includes the following steps:

– [ … mathematical calculation steps …];

– therein:

– the range of values ​​of one of the parameters is extended according to the data generated for use in the control of the physical process mentioned above.

The claimed subject-matter relates to a computer program, in which the program implements a mathematical method of analyzing the functional relationship between two parameters. To assess whether this subject-matter as a whole, has technical character or not, it is insufficient to rely solely on features such as “implemented by computer” because it has not yet been determined whether a specific implementation is beyond the conventional technical implementation, or the purpose is for “controlling a specific physical process”. It is important here to determine whether there is a sufficient relationship between the technical purpose and the mathematical method implemented by the software. It can be seen that the input and output of this mathematical method are related to the technical purpose and its result “the range of values ​​of one of the parameters is extended” directly affects the “controlling a specific physical process”. Therefore, this subject-matter is considered to produce a further technical effect and is protectable as an invention.

4.2. Artificial intelligence and machine learning

Artificial intelligence and machine learning are based on computational models and algorithms for classification, clustering, regression, and dimensionality reduction, such as neural networks, genetic algorithms, support vector machines, k-means, kernel regression and discriminant analysis. Such computational models and algorithms are per se of an abstract mathematical nature, irrespective of whether they can be “trained” based on training data.

Terms such as “support vector machine”, “reasoning engine”, or “neural network” may, depending on the context, merely refer to abstract models or algorithms and thus do not necessarily imply the use of technical means. This has to be taken into account when examining whether the claimed subject-matter, as a whole, has technical character.

Artificial intelligence and machine learning are applied in various fields of technology. For example, the use of a neural network in heart-monitoring apparatus for the purpose of identifying irregular heartbeats makes a technical contribution. The classification of digital images, videos, audio, or speech signals based on low-level features (e.g., edges or pixel attributes for images) are further typical technical applications of classification algorithms.

However, classifying text documents solely in respect of their textual content is not regarded to be per se a technical purpose but a linguistic one. Classifying abstract data records or even “telecommunication network data records” without any indication of technical use being made of the resulting classification is also not per se a technical purpose, even if the classification algorithm may be considered to have valuable mathematical properties such as robustness.

Where a classification method serves a technical purpose, the steps of generating the training set and training the classifier may also contribute to the technical character of the invention if they support achieving the technical purpose.

Example 1:

The system for estimating the generated electricity capacity of the hydroelectricity of the dam implemented by a computer includes: a neural network which is built in the form of an information processor, a neural network with an input layer and an output layer in which the input data inputs to the input layer contains the temperature of the upstream river during the predefined time duration between the reference time and the predefined time preceding the reference time.

It is easy to see that the feature wherein the neural network uses input data as a physical quantity including the temperature of the upstream river during the predefined time duration between the reference time and the predefined time preceding the reference time can bring about a significant effect on the accuracy of the estimated result of the generated electricity capacity of the hydroelectricity generated by the said neural network. Therefore, this feature is considered to serve a specific technical purpose and contribute to the technical character of the invention. Therefore, the above subject-matter can be protectable as an invention.

Example 2:

A computer-readable storage medium containing therein a computer program operates to make the computer work to output quantitative values ​​about a hotel’s reputation based on textual data about the hotel’s reputation, wherein:

this program includes the first neural network and the second neural network connected in such a way that the second neural network receives the output from the said first neural network;

the said first neural network includes the input layer to the intermediate layers of the characterized extraction neural network, in which in this characterized extraction neural network the number of neurons of at least one intermediate layer is smaller than the number of neurons of the characterized extraction neural network of an input layer, the number of neurons of the input layer and the output layer are the same and the weights have been trained in such a way that each input value for the input layer and each output value corresponding from the output layer should be equal;

the weights of the said second neural network have been trained without changing the weights of the said first neural network; and

the program that causes the computer to perform a calculation based on the said trained weights in the said first and second neural networks in response to the frequency of occurrence of particular words obtained from the textual data of the hotel’s reputation is entered into the input layer of the first neural network and to output the quantified values ​​of the hotel’s reputation from the output layer of the said second neural network.

The claimed subject-matter relates to computer-readable storage medium which stores therein a computer program to make the computer work to output quantitative values about a hotel’s reputation based on the textual data about the hotel’s reputation. Although the purpose of “outputting quantitative values about the hotel’s reputation” may be considered as not having a technical character, but serving a business purpose, the features cited in the claim identify a particular technical implementation embodiment that goes beyond aspects of a mere business method, namely that the first and second neural networks receive output from the first neural network, where the first neural network includes the input layer to the intermediate layers of a characterized extraction neural network, this characterized extraction neural network has the number of neurons of at least one intermediate layer less than the number of neurons of the input layer, the number of neurons of the input layer and the output layer are the same, and the weights have been trained in such a way that each input value for the input layer and each corresponding output value from the output layer become equal.

            Thus, according to the characteristics of this characterized extraction neural network, the intermediate layer will obtain the characterized values representing the characteristics of each input data. These characterized values ​​can be compressed to retain only important characteristics in the intermediate layers with a smaller number of neurons in the input layer. Although the characterized values ​​appearing in the intermediate layer need not have explicit physical implications, these characterized values ​​are compressed but still ensure that the input information introduced into the input layer can be restored into output information from the output layer, and the characterized values ​​that appear in the intermediate layer become almost the same regardless of the input featured values ​​introduced into the input layer. According to the present invention, the weights of the second neural network are trained without changing the weights of the said first neural network. This training is performed by a widely known technique called backpropagation. Therefore, the above program can accurately analyze the reputation of the hotels without appropriately selecting the input characterized values ​​to be introduced into the input layer (no need to set the characterized values ​​in advance). Therefore, according to the aspect of preprocessing the training data for machine learning, this feature is considered to serve a technical purpose, and contribute to the technical character of the present invention. Therefore, the above subject-matter can be protectable as an invention.

4.3. Simulation, design or modelling

A simulation performed by a computer of the behavior of a satisfactorily defined class of technical products or specific technical processes that, under technically suitable conditions, qualifies as a technical purpose, for example a numerical simulation of the performance of the interference-resistant circuit 1/f or of a particular industrial chemical process.

Such computer simulation methods cannot be denied about technical effects solely on the basis that they precede actual production and/or do not include the production step of the tangible end product.

In contrast, the simulation of non-technical processes, such as a marketing campaign, a management scheme for transporting goods or defining a schedule for agents in a call center does not represent a technical purpose. In addition, general limitations, such as “simulation of a technical system”, do not define a valid technical purpose.

In the context of the computer-aided design of a particular technical subject-matter (product, system or process), the determination of specifications that are intrinsically linked to the function of the technical subject, where this determination is based on technical considerations, is a technical purpose.

For example, in a computer-implemented method of designing an optical system, the use of a specific formula to determine specifications, such as the index of refraction and the magnification factor, for given input conditions to obtain optimal optical performance would make a technical contribution. Another example is the determination by iterative computer simulations of the maximum value so that a nuclear reactor operating parameter can proceed without the risk of stress-induced tube breakage would make a technical contribution.

In contrast, when the determination of computer-aided specifications depends on decisions that need to be made by humans and the technical considerations for making such decisions are not represented in the claim, then the technical effect of the improved design is not recognized because such an effect has no causal relationship to the claim features.

If a computer-implemented method only results in an abstract model of a product, system or process, for example, a set of equations, then the model itself is not considered a technical effect, even if the product, system or process being modeled is technical. For example, a logical data model for a family of product configurations has no intrinsic specification, and a method only describes how to proceed to arrive at such a logical data model that makes no technical contributions beyond its computer implementation. Similarly, a method that only represents how to describe a multiprocessing system in a graphical modelling field makes no technical contributions beyond its computer implementation.

Example:

A method implemented by a computer to numerically simulate the performance of an interference-resistant circuit 1/f, wherein:

(a) the circuit is described by a model characterized by input channels, noise input channels and output channels;

(b) the performance of the input channels and the output channels described by a system of stochastic differential equations;

(c) an output vector is computed for an input vector present in the input channels and for a noise vector y of a distributed random number 1/f present on the noise input channels; and

(d) the noise vector y is generated by the following steps:

(d1) set the number n of random numbers to be generated;

(d2) generates a vector x of length n of Gaussian distributed random numbers;

(d3) generates the vector y by multiplying the vector x by the matrix L defined by equation E1 (Assume that equation E1 is explicitly expressed in the claim).

The subject-matter of the claim represents a computer-implemented method to numerically simulate the performance of an interference-resistant circuit 1/f, which is one of the main sources of noise in electrical circuits. The features (a)-(c) indicate the mathematical model used in this numerical simulation. It consists of the noise vector y of distributed random numbers 1/f, i.e. random numbers with statistical properties typical of real (physical) noise 1/f. Steps (d1)-(d3) define the algorithm used to generate these random numbers. According to the description, this algorithm is particularly efficient in terms of the computation time and storage resources required to generate the random numbers needed for the simulation.

The use of computers to implement the claimed method is a clear technical feature but it is not sufficient to bring about technical characters to the subject-matter. The question is whether the remaining features, namely the algorithm of steps (d1)-(d3), contribute to the technical character of the subject-matter. On their own, steps (d1)-(d3) represent a mathematical method, which can be considered not have a technical character. However, this mathematical method is a computer-implemented method for the technical purpose of numerically simulating the performance of an interference-resistant circuit 1/f. In addition, the features (a)-(c) ensure that the claim is functionally limited to this technical purpose to specify the mathematical model used in the simulation and how the noise vector y generated are used therein, that is, they establish a link between the proposed purpose of the method and steps (d1)-(d3). Furthermore, this mathematical model is indicated by the features (a)-(c) which define how the numerical simulation is performed and thus also contribute to the above technical purpose. As a result, all the steps involved in circuit simulation, including the claim feature represented by the mathematical steps (d1)-(d3), also contribute to the technical character to the extent they are related to the simulation of electrical circuits.

4.4. Implementations of schemes, rules and game methods

Contemporary games, and video games in particular, are often characterized by complex interactive and narrative elements of virtual game world. Such game elements govern how the game proceeds in its own accord (e.g., evolving characters and storylines) as well as how it proceeds in interaction with the player(s) (e.g., tapping along with the game soundtrack to make your character dance if the rhythm match). Given that these elements are conceptual in nature, they qualify, in a wider sense, as rules for playing the game. This holds true irrespective of the fact that they might be untold or revealed only while playing.

Game rules are designed to entertain and keep the interest of players by way of psychological effects such as amusement, suspense, or surprise. Such effects do not qualify as technical effects. Similarly, giving rise to a balanced, fair, or otherwise rewarding gameplay are psychological effects, not technical ones. Hence, rules and corresponding computations which determine a game score or skill rating for players, even if computationally complex calculations, are usually considered non-technical.

Highly interactive gameplay such as in video games involves technical means for sensing user input, updating the game state, and outputting visual, audio, or haptic information. Cognitive content that informs the player about the current game state at a non-technical level, e.g. about a game score, the arrangement and suits of playing cards, the state and attributes of a game character is regarded as non-technical information. This equally holds for instructions presented on game boards or cards. An example of a technical context in which the manner of presenting information can make a technical contribution is the interactive control of real-time manoeuvers in the game world, the display of which is subject to conflicting technical requirements.

Features which specify how to provide user input normally make a technical character. However, a mapping of parameters obtained from known input mechanisms to parameters of a computer game qualifies as a game rule in a wider sense if it reflects the choice of the game designer, set for the purpose of defining the game or making it more interesting or challenging (e.g. a condition specifying that the sliding gesture on the touchscreen determines both strength and spin of a virtual golf swing).

4.5. Implementations of business method

Subject-matters or activities which are of a financial, commercial, administrative or organizational nature fall within the scope of schemes, rules and business methods. Hereinafter, such subject-matters or activities will be subsumed under the term “business method”.

Financial activities typically include banking, billing, or accounting. Marketing, advertising, licensing, management of rights and contractual agreements, as well as activities involving legal considerations, are all activities of a commercial or administrative nature. Personnel management, designing a workflow for business processes, or communicating postings to a target user community based on location information are examples of organizational rules. Other activities typical of doing business concern operational research, planning, forecasting, and optimizations in a business environment, including logistics and scheduling of tasks. These activities involve collecting information, setting goals, and using mathematical and statistical methods to evaluate the information for the purpose of facilitating managerial decision-making.

Although features related to a mere business method do not produce a technical effect, features that are the result of specific technical implementation embodiment options that are not part of the business method can contribute to the technical character and therefore must be fully considered.

Example 1:

Networked computer system that allows customers to obtain audiovisual content of selected products using computers installed in each company’s store, all connected to a central server with a central database that stores audiovisual content in the form of electronic files, where the distribution of electronic files from the central server to the stores of sale can be accomplished by allowing download individual files directly from a central database to a computer at the request of the customer, or by transferring multiple selected electronic files to each store, storing these files in a local database store and retrieve the corresponding file from the local database when the store customer requests the audiovisual content.

The said subject-matter has technical characters including a computer system, a network, a central database, a server, and a local database to distribute audiovisual content in the form of electronic files. Therein, implementing one of the two technical implementations for content file distribution as above is within the capacity of a person skilled in the art, such as a software engineer. And the selection of different sets of audiovisual content to provide to each store will often be optional or dependent on the manager, or the business. Features that refer to any of these two technical implementations are technical features, while features that refer solely to business methods are non-technical features.

Although this subject-matter has technical features related to methods for distributing content files to clients, these technical features are not beyond conventional technical implementations. In addition, the manager’s subjective choice of one of the distribution methods is a mere business method, not intended to solve a specific technical problem, and when combined with technical features, does not produce a further technical effect. Therefore, the subject-matter of this example, when considered as a whole, is not considered to have a technical character and is not protectable as an invention.

Example 2:

Networked computer system that allows customers to obtain audiovisual content of selected products by using computers installed in each company’s store, all connected to a central server with a central database that stores audiovisual content in the form of electronic files, where the distribution of electronic files from the central server to the stores of sale can be accomplished by allowing download individual files directly from a central database to a computer upon customer request, or by transferring electronic files requested more than a predetermined number of times at a store to door store, store these files in this store’s local database, and retrieve the corresponding file from the local database when a customer at the store requests the audiovisual content.

In addition to the same technical features as the previous example, in this example, the selection of files was requested multiple times for storage in the store’s local database and retrieval from the local database when in-store customers request audiovisual content would avoid multiple repeated downloads of the same file directly from a central database thus saving communication resources, while also saving store local storage resources because only files with a high request probability are selected for storage. Therefore, the subject-matter in this example, when considered as a whole, produces further technical effects that are an efficient use of resources and can be protectable as an invention.

In the case of the claim directed to a technical implementation of a business method, a modification to the underlying business method aimed at circumventing a technical problem, rather than addressing this problem in an inherently technical way, is not considered to make a technical contribution. In the case of automation of a business method, effects which are inherent in the business method do not qualify as technical effects.

For instance, an automated accounting method that avoids the redundant bookkeeping may require fewer computer resources to store and compute. These advantages, in so far as that they result from a reduction of the number of operations to be performed and the amount of data to be considered due to the business specification of the accounting method, are inherent to the accounting method itself and hence do not qualify as technical effects.

Another example is an electronic auction that is performed by successively lowering the price until the price is fixed by the remote participant who first transmits a message. Since messages are likely to be received out of order due to possible transmission delays, each message contains timestamp information. Changing the auction rules to obviate the need for timestamp information to circumvent the technical problem of transmission delays rather than solving it with technical means and therefore do not qualify as technical effects.

As a further example, in a method for carrying out electronic financial transactions with credit cards at a point of sale, the administrative decision to dispense with the need to obtain the name or address of the buyer to authorise the transaction may result in saving time and reducing data traffic. However, this measure, on the basis, is not a technical solution to the technical problem of the bandwidth bottleneck of communication lines and the limited capacity of server computers, but an administrative measure with no technical contribution and therefore it does not produce the technical character of the claimed subject-matter.

The input of a business method is real-world data is not sufficient for the business method to contribute to a technical character of the claimed subject-matter, even if the data are physical parameters (e.g. geographical distance between points of sale).

In a computer-implemented method for facilitating managerial decision-making, automatically selecting from a set of business plans the most cost-effective one which also enables meeting certain technical constraints (e.g. to achieve a targeted reduction in environmental impact) is not considered to contribute a technical effect beyond the computer-implementation.

The mere possibility of serving a technical purpose is not enough for a method to contribute to the technical character of the invention. For example, a claim referring to a “method of resource allocation in an industrial process” encompasses pure business processes and services in finance, administration, or management, without limiting the method to any specific technical process due to the breadth of meaning of the term “industry”.

The outcome of a business method can be useful, and practical, but not sufficient to qualify as technical effects.

Business method features, e.g. administrative features, can be found in different contexts. For example, a medical support system may be configured to deliver information to the clinician on the basis of data obtained from patient sensors and only if such data is not available, on the basis of data provided by the patient. The prioritization of sensor data over data provided by the patient is an administrative rule. Establishing it lies within the competence of an administrator, e.g. the head of a clinic, rather than within that of an engineer. As an administrative rule with no technical effect, it does not contribute to the technical character of the claimed subject-matter.

4.6. Information modelling, activities of programming, and programming languages

Information modelling is an intellectual activity devoid of technical character and typically carried out by a systems analyst in the first stage of the software development process, to provide a formal description of a real-world system or a process. Consequently, specifications of a modelling language, the structure of the information modelling process, or the maintenance of models likewise have no technical character. Similarly, properties inherent to information models, such as reusability, platform independence, or convenience for documentation, are not regarded as technical effects.

If an information model is purposively used in the context of an invention to solve a specific technical problem, it can contribute to the technical character of the invention.

Features that determine how the model is actually stored (for example, using relational database technology) can also be technically contributing.

Conceptual methods that describe the software development process (meta-methods) often have no technical character. For example, in a computer-implemented method for generating program code for a control task, a feature specifying that the platform-independent model is converted to a platform-dependent model, from which derives program code adapted to the target platform, makes no technical contribution in so far as the performance of the control task itself is not affected.

The activity of programming, in the sense of writing code, is an intellectual, non-technical activity, to the extent that it is not used in the context of a particular application or environment to contribute causally to the production of a technical effect.

For example, reading a data type parameter from a file as input to a computer program, rather than defining the data type in the program itself, is merely a programming option when writing code, which has per se no technical character. The same applies to naming conventions for object names for facilitating the intelligibility and the management of program code.

Defining and providing a programming language or a programming paradigm such as object-oriented programming, does not per se solve a technical problem, even if its particular syntax and semantics enable the programmer to develop a program more easily. Easing the intellectual effort of the programmer is per se not a technical effect.

When assessing an invention relating to a programming environment, the features pertaining to the programming language do not normally contribute to its technical character. For example, in a visual programming environment, the provision of specific graphical building blocks is part of the programming language and makes no technical contribution if the only effect is easing the intellectual effort of the programmer. The provision of particular programming constructs may enable a programmer to write shorter programs, but that does not qualify as a technical effect since any resulting reduction of program length ultimately depends on how programming constructs are used by a programmer. In contrast, automatically processing machine code by dividing it into an instruction chain and an operand chain and replacing repeating instruction sets by macro-instructions to generate optimized code of reduced memory size make a technical contribution. In this case, the effect does not depend on how a programmer makes use of the macro-instructions.

4.7. Data retrieval, formats and structures

A data structure or format may contribute to the technical character of the invention if it produces a technical effect. This may happen if the data structure or format has a technical function in the technical system, such as controlling the operation of the device processing the data. Data has a technical function that includes or is related to the corresponding technical characters of the device. On the other hand, cognitive data are data whose content and meaning are only relevant to the user and do not contribute to producing a technical effect.

For example, a record carrier for use in a picture retrieval system stores coded pictures with a data structure defined in terms of line numbers and addresses which instructs the system on how to decode and access the picture from a record carrier. This data structure is defined in terms that inherently comprise the technical characters of the picture retrieval system, namely the record carrier and a reading device for retrieving pictures therefrom in which the record carrier is operative. Thus, it contributes to the technical character of the record carrier, while the cognitive content of stored pictures (e.g. photographs of a person or landscape) does not.

Similarly, an index structure used for searching a record in a database produces a technical effect since it controls how the computer performs the search operation.

Another example is an electronic message with a header and a content section. The information in the header comprises instructions that are automatically recognized and processed by the receiving message system. This processing in turn determines how the content elements are to be assembled and presented to its final recipients. The provision of such indications in the header contributes to the technical character of the electronic message, while the information in the content section, representing cognitive data does not.

A data structure or a data format may have features that may not be characterized as cognitive data (i.e. not for conveying information to a user) but which nevertheless do not make a technical contribution. For example, the structure of a computer program may merely aim at facilitating the task of the programmer, which is not a technical effect serving a technical function. Furthermore, data models and other information models at an abstract logical level have per se no technical character.

4.8. Database management systems and information retrieval

Database management systems are technical systems implemented on computers to perform the technical tasks of storing and retrieving data using different data structures for efficient management of data. Therefore, a method performed in a database management system is thus a method that uses technical means and is therefore not excluded from patentability under Article 59 of the Law on Intellectual Property.

Features specifying the internal functioning of the database management system are normally based on technical considerations. Thus, they contribute to the technical character of the invention. For example, technical considerations are involved in improving system throughput and query response times by automatically managing data using various data storages with different technical properties such as different levels of consistency or performance.

Database management systems execute structured queries, which formally and accurately describe the data to be retrieved. Optimizing the execution of such structured queries with respect to the necessary computer resources (such as CPU, main memory, or hard disk) contributes to the technical character of the present invention since it involves technical considerations concerning the efficient exploitation of the computer system.

However, not all features implemented in the database management system necessarily make a technical contribution by virtue of this fact alone. For example, a feature of the database management system for accounting costs related to the use of the system by different users may be regarded as not making a technical contribution.

Data structures, such as an index, a hash table, or a query tree, used in database management systems to facilitate access to data or the execution of structured queries contribute to the technical character of the invention. Such data are functional since they purposefully control the operation of the database management system to perform said technical tasks. In contrast, data structures defined solely by the cognitive information they store are not considered to contribute to the technical character of the invention beyond mere storage of data.

A distinction is made between the execution of structured queries by the database management system and the information search. Information search includes searching for information in a document, searching for documents themselves, and also searching for metadata that describes data such as texts, images, or sounds. The query may be formulated by the user in need of information, typically informally using natural language without precise format, for example, the user may enter search terms as a query in web search engines to find related documents or submit an exemplary document to find similar documents. If the method of estimating relevance or similarity relies solely on non-technical considerations, such as the cognitive content of searched items, purely linguistic rules, or other subjective criteria (e.g. items found relevant by friends in social networks) does not make a technical contribution.

The translation of linguistic considerations into a mathematical model for the purpose of enabling the linguistic analysis to be done automatically by a computer can be seen as involving, at least implicitly, technical considerations. However, this is not enough to guarantee the technical character of the mathematical model. Further technical considerations such as those relating to the internal functioning of a computer system are needed.

For example, a mathematical model for calculating the probability that a given term is similar in meaning to another term by analyzing the co-occurrence frequency of two terms in a collection of documents does not make a technical contribution per se since it is based on considerations of a purely linguistic nature (i.e. based on the assumption that terms which are related are more likely to occur unrelated terms in the same documents). The search results produced using this similarity calculation method would differ from methods that apply a different mathematical model only because information with different cognitive content will be searched. This is non-technical and not sufficient to qualify as a technical effect. In search based on the similarity of meaning of terms, the concept of “search better” is subjective. In contrast, optimizing the execution time of structured queries in a database management system as mentioned above has a technical effect.

4.9. Presentations of information

Presentations of information are understood as the conveying of information to the user. It concerns both the cognitive content of the information presented and the manner of its presentation. It is not limited to visual information, but also covers other presentation modalities, such as audio or haptic information. However, it does not extend to the technical means used for generating such presentations of information.

Furthermore, conveying information to a user is to be distinguished from the technical representations of the information directed to a technical system that will process, store or transmit the information. Features of data encoding schemes, data structures, and electronic communication protocols which represent functional data as opposed to cognitive data are not regarded as presentations of information.

A feature defining a representation of information produces a technical effect if it credibly assists the user in performing a technical task by means of a continued and/or a guided human-machine interaction process. Such a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature. This would not be the case if the alleged effect depends on subjective interests or preferences of the user. For example, for some users it is easier to understand data when it is displayed as numeric values, whereas others might prefer a color-coded display. Therefore, the choice of one or other manner of displaying the data is not considered to have a technical effect. Similarly, whether or not the audio information is conveyed as a musical scale instead of spoken words is a matter concerned only with the cognitive abilities of the user. As another example, allowing the user to set parameters determining the information to be presented or to select the manner of its presentation does not make a technical contribution if it merely accommodates subjective user preferences.

Thus, the presentation of information related to the content of the information presented and the way the information is presented will be considered in terms of technical effect, specifically as follows:

The information content is presented:

If the cognitive content of the information presented to the user relates to an internal state prevailing in a technical system and enables the user to properly operate this technical system, it has a technical effect. An internal state prevailing in a technical system is an operating mode, a technical condition or an event which is related to the internal functioning of the system, may dynamically change and is automatically detected. Its presentation typically prompts the user to interact with the system, for example to avoid technical malfunctions.

Static or predetermined information about technical properties or potential states of a machine, specifications of a device or operating instructions do not qualify as an internal state prevailing in the device. If the presentation of static or predetermined information merely has the effect of helping the user with the non-technical tasks preceding the technical task, it does not make a technical contribution. For example, the effect that the user is not required to know or memorize a sequence of buttons to be operated prior to configuring a device is not a technical effect.

Non-technical information such as the state of a casino game, a business process or an abstract simulation model is exclusively aimed at the user for subjective evaluation or non-technical decision-making. It is not directly linked to a technical task. Therefore, such information does not qualify as an internal state prevailing in a technical system.

How information is presented:

A feature in this category typically specifies the form or arrangement in which, or the timing at which, information is conveyed to the user (e.g. on a screen), for example, a diagram designed solely for conveying information. Specific technical characters related to the way audio signals or images are generated are not regarded as a manner in which information is presented.

Features defining a visualization of information in a particular diagram or layout are normally not considered to make a technical contribution, even if the diagram or layout arguably conveys information in a way that a viewer may intuitively regard as particularly appealing, lucid or logical.

For instance, dealing with limited available screen space is part of designing presentations of information for human viewing and therefore not an indication of technicality per se. The general idea of giving an overview of a plurality of images in a limited display area by displaying a single image and sequentially replacing it with other images is not based on technical considerations but is a matter of layout design. Similarly, arranging objects within available screen space by eliminating “white space” between window panes follows the same layout principles as would apply to the layout of a magazine cover and does not involve technical considerations.

On the other hand, if the manner of presentation credibly assists the user in performing a technical task by means of a continued and/or guided human-machine interaction process, it produces a technical effect. For example, displaying several images side by side in low resolution and allowing selection and display of an image at higher resolution conveys information to the user in the form of a technical tool that enables the user to perform the technical task of interactively searching and retrieving stored images more efficiently. Storing digital images at different resolutions gives rise to the technical effect of allowing the simultaneous overview display of several images. As another example, in a video soccer game, the particular manner of conveying to the user the location of the nearest teammate by dynamically displaying a guide mark on the edge of the screen when the teammate is off-screen produces the technical effect of facilitating a continued human-machine interaction by resolving conflicting technical requirements: displaying an enlarged portion of an image and maintaining an overview of a zone of interest which is larger than the display area. As a further example, in the context of a visual aid for a surgeon, if, in the course of surgery, the current orientation of a medical ball joint implant is displayed in a manner that credibly assists the surgeon to correct the position of the implant in a more precise manner, this is considered to provide a technical effect.

In addition, information representation is also considered for technical effect based on human physiological function, and relies on the mental activities of the user, specifically as follows:

Effects relying on human physiology:

When a manner of presenting information produces in the mind of the user an effect which does not depend on psychological or other subjective factors but on physical parameters which are based on human physiology and can be precisely defined, that effect may qualify as a technical effect. The manner of presenting information then makes a technical contribution to the extent that it contributes to this technical effect. For example, displaying a notification on one of a plurality of computer screens near the user’s current visual focus of attention has the technical effect that it is more or less guaranteed to be seen immediately (compared with an arbitrary placement on one of the screens). In contrast, the decision to show only urgent notifications (compared to all notifications) is based only on psychological factors and thus makes no technical contribution. Minimizing information overload and distraction is not considered to qualify per se as a technical effect. As another example, displaying a stream of images in which the parameters for delay and change in the content between successive images are computed on the basis of physical properties of human visual perception in order to achieve a smooth transition is considered to make a technical contribution.

If information (e.g. a visual or audio stimulus) is presented to a person for the purpose of producing in that person a physiological reaction (e.g. involuntary eye gaze) which can be measured in the context of assessing a medical condition (e.g. eyesight, hearing impairment or brain damage), that presentation of information may be considered to produce a technical effect.

Effects relying on mental activities of the user:

Where the claimed subject-matter comprises a feature of presenting information to a user, be it of the cognitive content of the information or the manner in which the information is presented, an evaluation by the user is involved. Although such an evaluation per se is a mental act, however, the mere fact that mental activities are involved does not necessarily qualify subject-matter as non-technical. For example, the user makes an evaluation based on an overview of low-resolution images in order to locate and objectively recognize a desired image. This mental evaluation may be considered to be an intermediate step steering the image search and retrieval process and thus forms an integral part of a solution to a technical problem. Such a solution relies neither on facilitating the human tasks of understanding, learning, reading or memorizing nor on influencing the user’s decision as to which image is to be searched. It provides a mechanism for inputting a selection which would not be possible if the images were not displayed in that specific arrangement.

On the other hand, if the choice or layout of information presented aims exclusively at the human mind, in particular to help the user to take a non-technical decision (e.g. which product to buy based on a diagram showing the properties of products), no technical contribution is made.

4.10. User interfaces

User interfaces, in particular graphical user interfaces (GUIs), comprise features of presenting information and receiving input in response as part of human-computer interaction. Features defining user input are more likely to have a technical character than those solely concerning data output and display, because input requires compatibility with the predetermined protocol of a machine, whereas output may be largely dictated by the subjective preferences of a user. Features concerning the graphic design of a menu (such as its look and feel) which are determined by aesthetic considerations, subjective user preferences or administrative rules do not contribute to the technical character of a menu-based user interface.

Features which specify a mechanism enabling user input, such as entering text, making a selection or submitting a command, are normally considered to make a technical contribution. For example, providing in a GUI an alternative graphical shortcut allowing the user to directly set different processing conditions, such as initiating a printing process and setting the number of copies to be printed by dragging and reciprocating the movement of a document icon onto a printer icon, makes a technical contribution. On the other hand, supporting user input by providing information facilitating only the user’s mental decision-making process during this task (e.g. helping the user in deciding what to input) is not considered as making a technical contribution.

Assisting a user in entering text in a computer system by providing a predictive input mechanism is a technical function. However, generating word variants to be displayed for the predictive input mechanism is, in itself, a non-technical problem. The linguistic model used to solve this non-technical problem does not, on its own, make a technical contribution. If technical considerations are involved to implement the linguistic model on a computer, such as those relating to the internal functioning of a computer, then a technical effect may arise.

Where the actual achievement of effects like simplifying the user’s actions or providing more user-convenient input functions depends exclusively on subjective user abilities or preferences, such effects may not form the basis of an objective technical problem to be solved. For example, a reduction of the number of interactions required to perform the same input is not credibly achieved if it materializes only for some usage patterns that occur depending on the user’s level of expertise or subjective preferences.

Manners of providing input, such as gestures or keystrokes, that merely reflect subjective user preferences, conventions or game rules and from which a physical ergonomic advantage cannot be objectively established, do not make a technical contribution. However, performance-oriented improvements to the detection of input, such as allowing faster or more accurate gesture recognition or reducing the processing load of the device when performing recognition, do make a technical contribution.

By Dinh Thi Thuy Trang and Dang Anh Minh

Patent Department

INVESTIP IP LAW FIRM