T 1741/22 - no credible technical effect produced by deriving additional data from medical measurements

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George James
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September 19, 2024
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EPO
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An interesting "B" decision from Board 3.5.05 was published yesterday relating to the generation of new data from medical measurements being relied on for a technical effect. The decision is summarised with the catchword: "The mere generation of further data from measurement data already collected from the human body is not a technical effect (T 2681/16 and the Guidelines for Examination not followed)".

The patent at issue in T 1741/22 related to a system for analysing glucose monitoring data indicative of a glucose level in a bodily fluid. Most of the inventive step discussion revolved around Auxiliary Request 10, wherein the Patentee stated that the distinguishing features over the prior art were the steps involving determining and displaying minimum / maximum glucose values. In essence, the Patentee was arguing that "new data" was being generated from glucose monitoring data, which provided for improved analysis for guidance of a patient or physician. They even had an analogous case (T 2681/16) and an example in the Guidelines (G-II, 3.3) on their side!

The Board was not convinced. In their view, the claims did not relate to a new "measurement" with technical character, which must involve the calculation of the physical state of an object, such as the human or animal body (G 1/19). Rather, the claims involved processing already measured data to then generate and display further data. The Board found that such subsequent processing of certain measurement data amounts to merely cognitive or mathematical exercise that is inherently non-technical (reasons 2.3).

In the decision, the Board fully sets out why they have deviated from T 2681/16 (reasons 2.3.6) and also discusses the "clearly erroneous" section of the Guidelines (reasons 2.3.7).

All in all, the appeal was dismissed and the patent was revoked. We can perhaps expect a brief update to the Guidelines next year…

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