Software patents for emerging tech since 2008

Finanz- und Börsenhandelssysteme sind nicht patentierbar (T1602/09)


Diese aktuelle Entscheidung vom 26. Juni 2014 ist ein weiteres Beispiel dafür, dass nicht-technische Merkmale einer Innovation keine erfinderische Tätigkeit begründen können. Das gilt auch für elektronische Finanz- und Börsenhandelssysteme, selbst wenn dort (selbstverständlich) technische Gerätschaften zum Einsatz kommen.

Aus der Entscheidung

[2.] It is undisputed that a computer system as defined by the first part of claim 1, i.e. essentially a communication network interconnecting a trading system, trader terminals and broker terminals, forms part of the prior art. It is further undisputed that the claimed system differs from such a common trading system by the profile and relationship data identifying the traders as “active traders” or “passive traders” and indicating the traders on behalf of whom the brokers are permitted to trade, further by the means identifying the log-on status, and by the means that permit transmission of trading commands on behalf of active traders only if the respective active trader is logged on to the system (see the claim wording, point III above).

[3.] The appellant has formulated the technical problem solved by the invention in the following way: “to provide a computer system in which execution of commands generated by one computer in a network can be prevented simply and easily by users of different computers in the network.” The appellant has stressed, and the Board agrees, that the control on the basis of the log-on status should be regarded as part of the solution, not of the problem.

[4.] The appellant’s problem formulation, however, says nothing about why or when commands should be prevented, or what the commands are or who the operators are. These restrictions are however essential since the invention as disclosed only makes sense under the particular (non-technical) conditions that the operators are “active” traders who wish to be able to supervise trading orders given by their brokers. According to T 641/00 “Two identities/COMVIK”, OJ EPO 2003,352, “where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met” (headnote 2). The aim may be novel (cf the reasons, points 12–14). This means in the present case that the active trader’s wish to prevent the broker from trading unless the trader is able to monitor the broker’s actions in real time cannot simply be ignored in the problem formulation.

[5.] Starting from the appellant’s technical problem, but at the same time having been informed of and considering the above non-technical constraints, the skilled person would realise that any means that permitted the trader to monitor the broker’s actions would serve his purpose. As the appellant has pointed out, many solutions would have offered themselves (cf point VI above). In particular, since the trading was computer-based the active trader would need to have access to the broker’s trading system. The skilled person was certainly aware that this made a log-on necessary. Equivalently, if the active trader for some reason was not logged on, the broker should not be allowed to trade. Ideally, the check should be automatic. These straight-forward considerations lead directly to the subject-matter of claim 1.

[6.] The appellant has made the point that the available prior art does not disclose the control of one computer by another computer, let alone the use of a log-on status for this purpose. In the Board’s view, however, this does not suggest that the invention was non-obvious. As explained above, the reason for the control is a business requirement. The ultimate aim is not to prevent a computer from issuing (any kind of) commands, but to prevent a certain broker from trading on the behalf of a certain trader. The “control” of the computer — which could also be regarded as a kind of message filter — is merely the means for achieving this. The searches for prior art have been carried out in databases containing technical documents. These documents are likely to mention the log-on procedure, which is arguably a technical feature. But they cannot be expected to describe “log-on detectors” whose sole purpose is to find out whether a certain person has logged on to a certain system or not. The technical relevance of such a detector could at most lie in its implementation, which in the present case is however of no concern.

[7.] It follows that the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC).

Link zur Entscheidung: T 1602/09 (Active traders) of 26.6.2014

About Bastian Best

Bastian Best

I'm a European patent attorney specializing in software patents and a partner in one of the most renowned IP only firms in Europe.

Add comment

Leave a Reply Software patents for emerging tech since 2008