In the decision T1741/22 the Board of Appeal of the European Patent Office (EPO) lately focused on clarity and inventive step of a computer-implemented invention.

In the decision the Board of Appeal refuses the European patent application 16153964.8 entitled “System and method for analyzing glucose monitoring data indicative of a glucose level, and a computer program product”.

The Board of Appeal stated that the mere generation of further data from measurement data already collected from the human body, is not a technical effect.

The invention aims to provide an improved analysis of glucose monitoring data for guidance of a patient or physician. This is achieved by assessing minimum and/or maximum glucose values from a measured dataset.  However, the Board of Appeal was not convinced that this could provide a technical effect.

The “new data” cannot provide a technical effect, since it is not generated by actual “measurements” but merely processes “already measured and received” data in order to support a physician in their purely intellectual deductive decision phases of diagnosis and therapy (see 2.3.3. of the reasons).

In particular, and with reference to the prior decision T 2681/16 (which is not followed), the Board of Appeal stated that applicants increasingly use the word “measurements” in the context of computer-implemented inventions, since they know that “measurements” are considered technical by the EPO and also “in order to give inventions the veneer of technicality” (see 2.3.6 of the reasons).

However, in the eyes of the Board of Appeal a prerequisite of a “measurement” with technical character is an “interaction with physical reality for the calculation of the physical state of an object, even if the measurement may be carried out indirectly, e.g. by means of measurements of another physical entity” (see 2.3.6 of the reasons). Both in the present invention and in the case underlying T 2681/16, the “physical reality” corresponds to the “patients blood”. Consequently, the physical reality ends once blood glucose measurements are carried out, either directly on the physical entity “blood” or indirectly e.g. on another “bodily fluid” as in the present case.

Further steps, like the prediction of glycemic events are mathematical steps or intellectual activities, which take place in the absence of this interaction with physical reality and are therefore not considered “measurements”. Consequently, they are also not considered technical. This is also the case for the “new data” in the present invention. A technical effect would only be achieved, if e.g. “measurements” of a technical nature would be acquired based on the new data. However, the invention does only provide generating and displaying of these measurements.

While the decision might be in alignment with the general approach the EPO recently seems to apply in the area of computer-implemented inventions, applicants in the sector might see difficulties to protect comparable ideas from imitation.