Software patents for emerging tech since 2008

Marketing campaigns are not patentable


The decision T 0983/11 of 17 September 2014 is a good reminder that the EPO does not grant patents on pure business methods, such as marketing campaigns.

The patent application at stake concerned an intelligent mail system to coordinate direct mail with other marketing channels. The invention concerns the calculation of dates on which people should be contacted for marketing purposes. The idea is to predict when marketing mail pieces will arrive at recipients’ homes, and to use those dates to determine an optimal date on which the recipients should be contacted using a further marketing channel (e.g. telephone, e-mail, television, radio).

The overall goal is to maximise the chances of a successful marketing campaign. The educated reader will already guess that this hardly qualifies as a technical problem at the EPO…

This is what the board of appeal said:

From the reasons

2.1 It is common ground that the subject-matter of claim 1 contains a mixture of technical and non-technical features, and that the approach to be applied for assessing inventive step is the “COMVIK” approach, in which non-technical features may be part of the objective technical problem, for example as a non-technical requirement specification given to the technically skilled person implementing the invention (T 641/00 — “Two identities/COMVIK”, OJ EPO 2003, 352). This approach is also used in the decision cited by the appellant (T 844/09).

2.2 The point of dispute is the identification of the non-technical features, and in particular whether the calculation of predicted arrival dates, by storing, generating, and manipulating various probability and prediction curves, is technical.

2.3 The appellant argued that the calculation of a probability distribution of predicted arrival dates relied on an understanding of the technical mail delivery process which would require technical skill. Therefore, it should be considered as being part of the technical implementation.

2.4 Firstly, the Board does not see that claim 1 requires the mail processing to be technical; in particular, it need not be an automatic process. Secondly, even if the claim were amended to include technical features of the mail processing (such as bar codes and RFID tags), the probability distribution could still be determined by simply observing the input and output to the mail delivery process, without any knowledge or understanding of any of the underlying technical processes. According to claim 1, the prediction of arrival dates is based on previous delivery times (“historical mail piece delivery data”), shipment and mail piece information, and an anticipated schedule (“anticipated induction date”). This is a matter of logistics planning which would be dealt with by a person skilled in the application of statistical mathematics to logistics. However, mathematical methods as such do not have technical character (Article 52(2)(a) and 52(3) EPC), and cannot contribute to inventive step.

2.5 In the Board’s view, technical skill is only required when the calculation is to be automated. This is the relevant point at which the requirement specification is handed over to the technically skilled person, and the technical problem to be solved is, therefore, how to implement the calculation. The Board agrees with the Examining Division that the solution according to claim 1 does not go beyond the use of a computer to perform the calculation, which would have been obvious to the skilled person. For these reasons, the Board concludes that the invention as defined in claim 1 of the main request does not involve an inventive step (Article 52(1) EPC and 56 EPC 1973).

Read the whole decision here.

Originally published at on August 26, 2015.

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.

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By Bastian Best Software patents for emerging tech since 2008