This is an examination appeal around EP 1 397 753 “COMPUTER SYSTEM WITH NATURAL LANGUAGE TO MACHINE LANGUAGE TRANSLATOR”.

The invention relates to translating natural (human) language into an abstract formal language. The formal language then serves as a universal template for further translations into various machine languages, e.g., SQL or SMTPL.

Fig. 2 of EP 1 397 753

Further technical considerations needed?

The first-instance examining division had argued that the translation of linguistic considerations into a mathematical model with the aim of enabling the linguistic analysis to be done automatically by a computer could be seen as involving, at least implicitly, technical considerations (referring to T 598/14 and T 1177/97). However, according to opinion G 3/08, point 13.5 of the Reasons, this was not enough as the technical character would have to be established on the basis that those considerations constituted “further technical considerations”.

Despite the appellant’s arguments, the board of appeal agreed with the examining division that most features of the independent claims did not contribute to the technical character of the invention.

Did G3/08 make it harder for software to be technical?

In its reasoning, the board took a close look at the landmark decision G 3/08 and concluded that it redraws the border between technical and non-technical aspects of computer programs:

5.3.3 In the current application, the claimed subject-matter does not relate to a technical application outside computing (the first case mentioned in decision T 1173/97). Thus, the program-related features of the claimed subject-matter only have a technical character if they contribute to solve a technical problem internal to the computer system (the second case mentioned in T 1173/97).

5.3.4 The appellant correctly argued that no final definition of the term “technical” has been given by the boards (see also opinion G 3/08, Reasons 9.2; decision G 1/19, Reasons 75 and 76).

5.3.5 However, the appellant’s argument that opinion G 3/08 did not redraw the border between technical and non-technical aspects of computer programs is not convincing.

In particular, the board considers that opinion G 3/08, when compared to decision T 1173/97, reframed the interpretation of technicality with respect to computer programs. Decision T 1173/97, Reasons 7.3, cites the subject of decision T 769/92 as an example of an invention which concerns the internal functioning of a computer caused by the programs running on it. T 769/92 considered that if technical considerations were required to arrive at the invention, sufficient technical character was lent to the invention as claimed (T 769/92, Reasons 3.3, 3.6 and 3.7). However, opinion G 3/08, Reasons 13.5 and 13.5.1, explicitly rejected the position adopted by decision T 769/92 that any technical considerations are sufficient to confer technical character on claimed subject-matter.

Such a narrower interpretation of the term “technical” with respect to computer programs is a normal development for the interpretation of a legal provision open to interpretation (see opinion G 3/19 of 14 May 2020, Reasons XX), and this is the case for “programs for computers” “as such” in Article 52(2)(c) and (3) EPC.

5.3.6 The board understands opinion G 3/08 as taking a negative view on the technical character of the activity of programming a computer as also expressed in the decision T 1539/09, Reasons 4.2 (in German): “Die Tätigkeit des Programmierens – im Sinne des Formulierens von Programmcode – ist ein mentaler Vorgang, wenigstens soweit sie nicht im Rahmen einer konkreten Anwendung oder Umgebung in kausaler Weise der Erzielung einer technischen Wirkung dient.”(The activity of programming – in the sense of formulating program code – is a mental act, at least in so far as it does not serve to achieve a technical effect in a causal way within the framework of a concrete application or environment [Translation by the board]).

Computer hardware is without any doubt a field of technology within the meaning of Article 52(1) EPC. Consequently, the board sees no reason why considerations that specifically exploit technical properties of the computer system hardware to solve a technical problem related to the internal operation of the computer system, such as storing data in main memory instead of on a hard disk to be able to read the stored data with less delay, should not be viewed as “further technical considerations” in accordance with opinion G 3/08. Such considerations (and associated “further” technical effects) are not present in all computer programs.

By contrast, the board sees no support for the appellant’s view that the concept “further technical considerations” should be interpreted with a broader meaning that would also cover considerations aiming to solve problems “merely” relating to programming such as maintainability, re-usability and understandability of program code, or, in this case, the use of a universal template for translating natural language into executable expressions in external operational environments. Such a broader view of the concept “further technical considerations” appears to be problematic with regard to the imperative to ensure legal certainty and judicial predictability requiring a uniform application of the law (see opinion G 3/08, Reasons 7.2.3) since no criteria are apparent which could then be used to establish a clear border between “technical” and “non-technical” aspects of computer programs.

5.3.7 In view of the above, the board agrees with the examining division that steps b) to p) do not contribute to the technical character of the claimed invention as these steps do not involve technical considerations going beyond “merely” finding an abstract computer algorithm to carry out the translation from natural language text into an internal formal language.

T 2825/19

In the end, the appeal was dismissed.

You can read the whole decision here: T 2825/19 (Natural language to machine language translator/RAVENFLOW) of 19.3.2021

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