T 0306/04 (Scheduling tasks/HONEYWELL) of 2.3.2007

Summary of Facts and Submissions

I. European patent application No. 99 954 776.3 (published as WO-A-00/28451) claimed a priority of 6 November 1998 from a US-application for an automated finite capacity scheduler.

II. The examining division refused the application for lack of novelty and inventive step, respectively, on the basis of the following prior art:

D1: Robert P. Goldman et al.: "A Constraint-Based Scheduler for Batch Manufacturing", IEEE EXPERT, NEW YORK, Vol. 12, No. 1, 1997, pages 49-56, and

D6: Mark Boddy et al.: "Hybrid Reasoning for Complex Systems", AAAI Fall Symposium on Model-Directed Autonomous Systems, 8-10 November 1997.

The decision in writing was posted on 20 August 2003.

III. The appellant (applicant) lodged an appeal against the decision, filing the notice of appeal on 17 October 2003 and paying the appeal fee the same day. The statement setting out the grounds of appeal was filed on 22 December 2003.

IV. In response to summons to attend oral proceedings, the appellant filed two sets of amended claims (main and auxiliary requests) by letter dated 22 November 2006.

Claim 1 of the main request reads as follows:

"1. A method of scheduling tasks in an industrial process the method comprising the steps of: defining requirements of the tasks;

creating (410) a list of activities required to accomplish the tasks;

modifying (410) selected activities into sets of smaller activities; wherein:

an activity may include one or more subactivities, and the step of modifying activities into sets of smaller activities includes: identifying activities including two or more subactivities at or above a threshold size; and

breaking subactivities of identified activities into two or more sets;

creating a list of resources which are used, required, of [sic!] modified by the activities;

for each resource, creating a list of points of interest where a point of interest is a point where an activity uses, requires, or modifies a state of a resource;

defining discrete and continuous constraints based on the requirements of the tasks;

defining discrete and continuous constraints at each point of interest;

scheduling (430) the activities and smaller activities based on the discrete and continuous constraints;

wherein scheduling the activities includes the setting of discrete and continuous parameters associated with the activities; and

wherein the time-varying states of the resources are related to the parameters associated with the activities by discrete and continuous mathematical relationships."

The auxiliary request differs from the main request only in the first paragraph of claim 1, which was amended to read as follows:

"1. A method of scheduling tasks in an industrial refinery, the method comprising the steps of:".

V. At oral proceedings held on 2 March 2007, the matter was discussed with the appellant's representative. The Board announced the decision on the appeal at the end of the oral proceedings.

VI. According to the appellant's requests submitted to the Board, the decision under appeal should be set aside and a patent be granted on the basis of the sets of amended claims in accordance with the main request or the auxiliary request, both requests as filed with the letter dated 22 November 2006.

VII. The arguments advanced by the appellant in respect to the patentability of the claimed invention may be summarised as follows:

The invention was not excluded from patentability under Article 52(2) and (3) EPC; scheduling tasks in an industrial process and, as claimed according to the auxiliary request, in an industrial refinery was a technical and thus patentable activity. The term "industrial" had been used because it was actually equivalent to the term employed in the patentability requirements of the EPC in Article 52(1). Article 52 defined what was meant by the term "industrial"; hence, the method of the present invention clearly met the requirements of the EPC in respect of Article 52. To make this even clearer, the auxiliary request defined the invention as a method of scheduling tasks in an industrial refinery, rendering scheduling clearly a technical part of an industrial process. The traders and sales functions shown in figure 2 were planning functions separated from the technical scheduling functions, as disclosed on page 8, lines 21 to 31 of the description.

Reasons for the Decision

1. The appeal, although admissible, is not allowable since the claimed methods are not inventions within the meaning of Article 52(1) to (3) EPC.

2. Article 52(2) and (3) EPC defines the matters to be regarded as non-inventions, excluding from patentability in particular mathematical methods (paragraph 2(a)) and schemes, rules, and methods for doing business (paragraph 2(c)) to the extent to which the application relates to these matters as such. Following the case law of the boards of appeal (see, for example, decision T 154/04-Estimating sales activity/DUNS LICENSING ASSOCIATES, to be published in OJ EPO, Reasons No. 6 ff.), these provisions are construed to exclude from patentability only to the extent that the subject matter of the claims lacks any technical character.

3. The subject of the present method claims is the scheduling of tasks in an industrial process, i.e. the placing of tasks in a timetable, schedule or any other type of list for allocating resources to activities over time.

4. In industry, and more generally in a business environment, scheduling is a typical activity in a preparatory phase for planning operations and allocating resources and is normally considered a field of operations research. In general, it should thus be subsumed under the excluded category of schemes, rules and methods of doing business.

When such methods involve features which confer technical character on them they may nevertheless form a valid subject of a European patent. Technicality may result, in the present context, from the implementation of planning and scheduling procedures on a computerised system or, for example, from the purposive use of such a procedure to control a technical process.

5. An automated scheduler is indeed described in the application as an embodiment and arguably claimed in separate system claims. The method claims, however, do not refer to any such automated systems at all. As claimed, not reciting any technical means, they may actually be performed as a purely intellectual activity. The mere possibility of using technical means, disclosed as an embodiment, is, however, not sufficient to avoid exclusion from patentability (see for example decision T 388/04-Undeliverable mail/PITNEY BOWES, OJ EPO 2007, 16).

The reference in claim 1 (main request) to an "industrial process" does not change the character of the method. From the considerable breadth of meaning of "industry", it follows that "industrial process" encompasses pure business processes and services in finance, administration, management, etc. The claimed method can thus not be construed to be limited to any, let alone specific, technical process.

6. The reference to an "industrial refinery" (auxiliary request) brings the claimed method closer to such a technical application. However, the expression "industrial refinery" can still not be construed to define, or imply any specific technical process to be controlled or scheduled.

It is evident that such a process cannot be inferred from the definition "in an industrial refinery". Neither is the refinery example described in the application (see page 8 ff. and figure 2 ff.) a basis for any such construction of the method claim: As indicated by reference numerals 214 and 224, refinery planning and scheduling involves traders and sales functions for allocating the resources (see page 8, lines 21 to 31). Hence, the scope of scheduled tasks may include purely business-related operations, but possibly also technical functions, like the control of the fluid transport system of the storage tanks (see figure 3).

However, such technical functions are not the express subject of the method claim. The mere possibility of serving a technical purpose or of solving a technical problem is not sufficient to avoid exclusion under Article 52(2) and (3) EPC (in analogy to the Pitney Bowes case T 388/04, see above).

7. Actually, the individual method steps defined in both claims 1 do not refer to scheduling of any concrete task at all, but define a rather abstract programme how to model a constraint-based scheduling problem including discrete and continuous constraints on the basis of abstract mathematical relationships. They do neither refer to any concrete technical problem nor does their execution require any technical considerations.

The Board already decided that abstract concepts and methods of information modelling do not have technical character (see decision T 49/99-Information Modelling/INTERNATIONAL COMPUTERS, not published in OJ EPO). This also applies to information modelling in the field of operations research, and in particular to process and data modelling for scheduling and planning purposes.

8. Regarding the lack of any technical aspect or feature in claim 1 according to both requests, it follows that the claimed methods are, as a whole, excluded from patentability under Article 52(2) and (3) EPC.

ORDER

For these reasons it is decided that:

The appeal is dismissed.