AI in healthcare inventions – technical or not technical?



Recent European Patent Office (EPO) Board of Appeal case T 1910/20 sits among a number of decisions regarding the discussion of what constitutes technical character in the field of healthcare. In this case, building a therapy plan, which should not be confused with practising a method of therapy on the human body, was held to be “a purely intellectual exercise”. Physiological measurements (glucose data signals from a patient), did not make the claimed mathematical algorithm have a technical effect.  

This case is of further interest since the Board felt it necessary to comment on the EPO Guidelines and point out a particular statement in the EPO Guidelines as “wrong” in its level of generality. 

The decision

T 1910/20 relates to an automated collection system that clusters measured ambulatory glucose data and displays patterns in the data as clusters.  The claim included a step of presenting the cluster centres on an electronic display but no steps of using the clusters to achieve a technical effect in the world.  

At first instance, the Examining Division refused the application on the basis that the purpose of the distinguishing features was a mere presentation of information, which did not credibly assist a user in performing a technical task by means of a continued and guided human-machine interaction process (the requirement in other EPO Board of Appeal case law T 336/14 and T 1802/13).

At appeal, the appellants argued that the technical effect of the distinguishing features was enhancing patterns in measured glucose data which may otherwise be overlooked, namely making such patterns visible or recognisable in order to help a doctor build a diabetes therapy plan. Specifically, it was argued that these clusters would help doctors to better understand the measured patient glucose data, thus assisting them in building a more appropriate diabetes therapy plan. The Board was not convinced and dismissed this reasoning on the basis that building a therapy plan is a purely intellectual exercise, not a technical task.

The appellant attempted to further argue that there was a technical effect by virtue of the derivation of the patient’s physiological state. Specifically, the appellant referred to the following section of EPO Guidelines G-II, 3.3 “[i]f steps of a mathematical method are used to derive or predict the physical state of an existing real object from measurements of physical properties, as in the case of indirect measurements, those steps make a technical contribution regardless of what use is made of the results” (emphasis added), and argued that the patient was an existing real object and their physiological state, in terms of patterns in their blood glucose data, was a physiological state. The Board was also not convinced by this argument.

Moreover, even though the Guidelines are not binding on the Boards of Appeal, this Board went as far as to point out this statement from the Guidelines (underlined above) as a “misleading blanket statement” that is “erroneous”. Specifically, the Board considered that as arguably all physical parameters represent a physical state of an existing real object, it follows that the statement in the Guidelines “those steps make a technical contribution regardless of what use is made of the results”, at least in its level of generality, is wrong.

In the present case, the appellant was unable to demonstrate any technical effect of the presentation of the cluster centres produced by the mathematical steps of the claims and thus the claims lacked an inventive step.