T 1952/21 (Reinforcement learning/BOSCH) of 14.6.2024

Summary of Facts and Submissions

I. The appeal lies from the decision of the Examining Division to refuse the application. With the statement of grounds of appeal the Appellant requested that the decision of the Examining Division be set aside and that a patent be granted on the basis of the main request, identical to the main request underlying the decision under appeal, or on the basis of one of three auxiliary requests, all filed with the statement of grounds of appeal.

II. The Examining Division refused the application for lack of clarity and for lack of inventive step in view of

D1: Mnih V. et al.: "Asynchronous Methods for Deep Reinforcement Learning", Proceedings of the 33rd International Conference on Machine Learning, pages 1928-1937, 2016.

III. In a communication accompanying a summons to oral proceedings, the Board informed the Appellant of its provisional opinion that the main and the first two auxiliary requests were not allowable for lack of inventive step, that it tended not to admit the third auxiliary request, which added a new independent claim, but that in substance also this last request did not appear to be allowable.

IV. With the letter of 15 May 2024, the Appellant filed a new third auxiliary request replacing the previous one.

V. Claim 1 of the main request defines:

A machine learning system (10), comprising:

an input unit (20);

a processing unit (30);

and an output unit (40);

wherein, the input unit is configured to provide the processing unit with input data;

wherein, the processing unit is configured to process the input data to generate processing path input data; wherein, the processing unit is configured to implement a first processing path comprising a feed-forward neural network to process the processing path input data to generate first intermediate data;

wherein, the processing unit is configured to implement a second processing path comprising a feed-forward neural network to process the processing path input data to generate second intermediate data, wherein said feed-forward neural network comprises stochastic units;

wherein, the processing unit is configured to implement a value output path comprising a feed-forward neural network to process the first intermediate data and the second intermediate data to generate value output data;

wherein, the processing unit is configured to implement a policy output path comprising a feed-forward neural network to process the first intermediate data and the second intermediate data to generate policy output data; and

wherein, the output unit is configured to output the value output data and output the policy output data.

VI. Claim 1 of the first auxiliary request differs from claim 1 of the main request by specifying that "the stochastic units comprise stochastic activations".

VII. Claim 1 of the second auxiliary request differs from claim 1 of the main request by defining

"A machine learning system (10) for reinforcement learning .."

VIII. Claim 1 of the third auxiliary request differs from claim 1 of the main request by defining

"A machine learning system (10) for reinforcement learning of control policy output data configured for controlling an engine, or valve, electrical circuit, or heating system, or robotic arm, or aerial drone, or humanoid robot, or self-driving vehicle .." and by further defining in the last two features the policy output data as "control policy output data".

Reasons for the Decision

The application

Background and prior art

1. The application relates to reinforcement learning. In reinforcement learning (see e.g. the published appli cation, paragraph 2), an agent explores the environment according to a policy, determining which action the agent takes (e.g. move right) at every juncture as a function of its current state (e.g. its position in the environment). The agent receives rewards, positive or negative. In this way it can "learn" the value of the various actions and states. The goal of training is to maximize a value function which reflects the expected sum of rewards given a certain action.

2. The application (see paragraph 4) builds upon the method of D1, called A3C (asynchronous advantage actor-critic). That method separately approximates the policy and value models as neural networks. The raw input (describing the environment) is preprocessed in sequence by a feed forward network (CNN - for spatial input description) and a recurrent neural network (LSTM - for time dependencies). The result is fed to the value and the policy networks (see the published application, figure 1).

2.1 Developments of that method, termed NoisyNet A3C in the current application, inject randomness into the training by using stochastic weights (e.g. by adding random noise or using stochastic models) in the policy and value networks. This allows for further exploration of the parameter space (see the published application, paragraph 5 and figure 2).

Contribution

3. According to the application (paragraph 6), such stochasticity in the dynamics of the controlled system, and also a lack of training data, can lead to imperfect decisions. The application therefore proposes (para graphs 10 to 13, 95 to 98, and figure 5) the use of a feed-forward intermediate layer between the LSTM layer of A3C and the policy and value networks, comprising a (standard) deterministic CNN and a CNN with stochastic units, exemplified as neurons with stochastic activa tion functions, working in parallel. The outputs of the two networks are concatenated and fed to the policy and value networks. Alternatively, the full intermediate layer may be stochastic. This intermediate layer is said to provide for better exploration, faster convergence, and better policies (paragraphs 15 to 17).

Main request: clarity

4. The Examining Division decided (reasons 11) that claim 1 lacked clarity as the term "stochastic unit" did not have a generally accepted meaning in the art and the application did not provide a clear definition either, in particular as to where the stochasticity "originated from".

5. In the Board's view, the skilled person would understand that a "neural network compris[ing] stochastic units" was one comprising neurons the output of which is partly determined by a stochastic element. There is no need to specify the exact origin of stochasticity (e.g. stochastic weight models or added random noise - see points 2 and 3 above) for the scope of the claim to be clear - it covers any possible "origin". Therefore, the Board does not follow the objection of the Examining Division.

Main request: inventive step

6. The Examining Division acknowledged the differences to D1 as being those related to the intermediate layer containing stochastic units (see the decision, reasons 12.2, but also point 3 above). However, it reasoned (reasons 12.3) that they were "limited in their effect to the way how a mathematical model in the form of a neural network internally processes abstract data", so that they could not contribute to the technical character of the claimed invention. The Examining Division also stated that the claim did not "serve a specific technical purpose".

6.1 In response to the Appellant's arguments, it considered (reasons 12.4) that reinforcement learning was not actually claimed, and anyway it did not "refer to a technical field but to a machine learning approach". Also, the various alleged advantages (see e.g. point 3 above) were not derivable from the claimed matter (decision, reasons 12.6 and 12.8).

6.2 Further, the Examining Division was not convinced that the case law related to simulations or cryptography, esp. RSA, applied to the present case (see the decision, reasons 12.5 and 12.9, respectively 12.7).

The Appellant's arguments

7. The Appellant argued that the distinguishing features contributed to the technical character of the invention for the following reasons.

8. First, the system design was motivated by technical considerations of the internal functioning of the computer. A computer was a deterministic system and therefore limited to deterministic operations, and the claimed stochastic units overcame that limitation by creating the desired stochastic property within the deterministic computer (statement of grounds of appeal, pages 11 and 12; and the Appellant's letter of 14 May 2024, section 1.A.a).

9. Secondly, the claim implicitly defined reinforcement learning: from the required value and policy output paths the skilled person would understand that the claim relates to reinforcement learning (see e.g. the statement of grounds of appeal, pages 8 and 9).

10. The claimed approach brought advantages in this field due to the claimed layer comprising stochastic units. There should not be a general requirement, neither in the field of reinforcement learning nor, more generally, in the field of artificial intelligence (AI), to provide experiments as evidence for technical effects. The established standard for establishing alleged advantages required only sufficient evidence (in support, the Appellant referred to the case law book of the Board of Appeals, 10th Edition, Chapter I.D-4.2; see letter of 14 May 2024, section 1.B.i). The Appellant argued that logical reasoning alone could constitute the required sufficient evidence.

10.1 Accordingly, the Appellant offered theoretical considerations for the present case (letter of 14 May 2024, section 1.B.a). The Appellant stated that stochasticity during training allowed for a wider exploration of the field of possible actions. It also allowed the optimization algorithm to escape local optima and find the global optimum. The obtained solution balanced deterministic and probabilistic signals, and by gaining a probabilistic perspective enabled it to assess ambiguous scenarios more effectively and to generalize better.

10.2 The corresponding scientific publication of the inventors:

Shang W., van der Wal D., van Hoof H., Welling M. (2020) Stochastic Activation Actor Critic Methods

showed (abstract, table 2 and figure 2) that these advantages could indeed be obtained, using benchmarks typically used in the art (statement of grounds of appeal, middle of page 12).

10.3 Although these results were related to video games, the person skilled in the art was able to obtain these advantages for any technical field; he or she could start with the hyperparameter sets of the prior art and modify them by trial and error, until a working configuration was obtained. This was within the skills of the skilled person, who must be considered to have experience in parametrizing neural networks.

10.4 For example, the invention was grounded in a technical project, namely that of an ABS breaking system. Applying the principles of the application, the inventors were able to reduce the breaking distance significantly.

11. These advantages were to be taken into account as potential technical effects in the sense of G 1/19, as they occurred when the system was used as intended, namely for reinforcement learning (statement of grounds of appeal, page 10).

12. The field of machine learning, and in particular reinforcement learning, was technical (see e.g. the statement of grounds of appeal, pages 12 to 14).

12.1 The Appellant argued this first by comparison with cryptography (RSA), which according to case law was a technical application. In particular T 1326/06, reasons 6.4, stated the following: "RSA was a breakthrough in the development of cryptography: RSA is regarded as the first practicable, concretely implementable asymmetric cryptosystem and is now a central component in numerous cryptographic security systems. The mathematics underlying RSA thus serves directly to solve a concrete technical problem".

12.2 In the Appellant's view, reinforcement learning was a similar breakthrough for autonomous systems, where it is "the only practicable and concretely implementable solution". It was therefore incorrect to require a limitation to a specific application. In fact

"reinforcement learning has crossed much further the border between technical and non-technical than RSA" - i.e. is more technical than the latter and more remote from mere mathematics - "as it uses many more technical aspects to achieve its purpose. [...] both an agent and an environment of the agent are required and the agent control is learned as well as improved, while RSA only requires data in terms of public-/private keys and electronic messages". These parallels should lead to the conclusion that also reinforcement learning is a technical field, even if the use of reinforcement learning is not the same as that of RSA.

13. The Board suggested in its preliminary opinion (see also below) that the appropriate starting point for the assessment of the technical character and potential technical contributions of reinforcement learning was the decision G 1/19, in which the Enlarged Board of Appeal had made several observations on the examination of computer-related inventions in general, in particular that a specific technical purpose may be needed to establish a technical effect.

14. In response, the Appellant argued the following in its letter of 14 May 2024 (section 1.A.b).

14.1 It might be correct that G 1/19 required a specific technical purpose to establish a technical contri bu tion. But this requirement, strictly applied, would mean that some earlier case law finding certain fields (such as RSA) to be "patent-eligible" would no longer be applicable. The Appellant questioned whether this development was "aligned with a teleological interpre tation of the EPC", in particular when (see page 3 of that letter) "the understanding of society of the term technical or technology becomes broader over time due to the exponential technologic[al] advancement (also referred to as technological evolution)" and, at the same time, "the case-law of the EPC steadily narrows its understanding" of technology. The Appellant also asked: "Is this in line with the original intention of the EPC, or is it contrary to the idea of the EPC?"

14.2 In the oral proceedings the Appellant argued that the EPC was old and written with traditional, for instance mechanical, inventions in mind. It was understood that such inventions existed to make people's lives easier, for instance by supporting or taking over manual tasks. Nowadays software implementing artificial intelligence (AI) often has the same purpose, albeit emulating a different class of human capabilities, and this trend would intensify in the future. Although AI methods indeed relied heavily on applied mathematics and (big) data processing, they were applicable in many technical fields and thus of independent value.

14.3 AI inventions therefore deserved patent protection, which was also desirable in order not to discourage their publication, which was beneficial for the public.

14.4 Moreover, it was a question of fairness how narrow a technical application or purpose as required by G 1/19 would have to be. Limiting the protection granted to an AI invention to a very specific technical application did not provide fair protection, if it relied on ideas which are broadly applicable. This was the case here because the invention was an improvement of reinforce ment learning which was generally applicable, e.g. to cars and robotics.

14.5 In summary, the Appellant asserted a disconnect between the patent system and the real world. It argued that "everyone in the real world" would acknowledge AI or machine learning as "technical" and that the case law needed to recognise this evolution of technology (see also the statement of grounds of appeal, page 15, fourth paragraph).

15. The distinguishing features therefore had to be accep ted as solving a technical problem. They were also not disclosed or rendered obvious by the cited prior art. Hence the claimed invention involved an inventive step.

The Board's opinion

16. The Appellant's allegation that stochastic units over come the limitations of the "deterministic" computer, goes beyond reinforcement learning and relates to a computer in general.

17. The Board remarks that pseudorandom number generators were known to the person skilled in the art. Their use, in general or in the more specific context of "stochastic units" (which the Appellant acknowledged to be known in the art, see the statement of grounds of appeal, page 4), does not change in substance the computer, which remains as "deterministic" as any conventional computer. So the Board cannot see a contribution on this level.

18. On the more narrow level of reinforcement learning, the non-deterministic behaviour of the claimed system is considered below.

19. The Board agrees with the Appellant that the skilled person would understand the claimed system to be one "for", i.e. meant to be used in, "reinforcement learning". The Appellant submission is, in a nutshell, that this field is technical and that the claimed invention makes improvements in this field.

20. The system for reinforcement learning as claimed is a neural network, comprising various sub-networks, implemented on a computer. The network, as a whole, defines a mathematical function mapping inputs into outputs. Effectively, the claim is to a mathematical method implemented on a computer.

21. Considering this, the Board holds that the Enlarged Board decision G 1/19, addressing the patentability of computer-implemented mathematical models for simula tion, should be the starting point when assessing the technical character of reinforcement learning. It is commonly accepted (also by the Appellant, see statement of grounds of appeal page 10, bottom) that a large part of the findings in G 1/19 apply to any computer implemented inventions.

22. In G 1/19, the Enlarged Board of Appeal stated (reasons 137) that (simulation) models by themselves are not technical but that "they may contribute to technicality if, for example, they are a reason for adapting the computer or its functioning, or if they form the basis for a further technical use of the outcomes of the simulation". However, "such further use has to be at least implicitly specified in the claim".

23. The implied use of the system in reinforcement learning requires, as the Appellant argued, an agent acting in an environment (see point 12.1 above). However, the agent and its environment need not exist in the real world, and can be completely virtual, e.g. part of a simulation model (a simulated agent acting within a simulated environment) or even a completely imaginary video game. The Board notes that both the prior art (see D1, section 5.1) and the scientific paper corresponding to the application referred to by the Appellant present results on video games. The concept of reinforcement learning in general does not imply a technical context.

24. The Board has already explained above that the functioning of the computer, or the computer itself, are not adapted. A further technical use is also not implied by the claim. So, even if the advantages in reinforcement learning brought forward by the Appellant were to be acknowledged (which is not the case, see below from point 32 on), the Board must conclude, on the basis of G 1/19, that the claimed system does not solve a technical problem.

24.1 This conclusion is consistent with that in the case T 702/20, which is in many ways similar to the present one, where this Board (in a different composition) decided, also following G 1/19, that a trained machine learning model, namely a neural network, can "only be considered for the assessment of inventive step when used to solve a technical problem, e.g. when trained with specific data for a specific technical task" (T 702/20, Catchword; see also reasons 12 and 17 to 19).

25. The Appellant also argued that reinforcement learning was technical based on an analogy with the case law regarding cryptography, in particular RSA (see 12 above).

25.1 The Board notes that, as the Appellant also acknowledged, notwithstanding certain similarities, RSA and reinforcement learning are different and serve different purposes. In particular, RSA and other cryptographic methods have a specific, and at least implied, purpose, namely data security. This is not the case for reinforcement learning. So the findings regarding RSA cannot directly be transferred to reinforcement learning.

25.2 It is therefore immaterial for the present decision whether individual Board of Appeal decisions relating to RSA are still applicable after G 1/19 or whether, as the Appellant seemed to imply, they are now wrong, i.e. "bad law".

26. The Appellant's opinion that decision G 1/19 has narrowed the scope of patentable subject matter and that this is in conflict with the evolution of technology and with a teleological interpretation of the EPC is noted. However, before the Board can deviate from the interpretations or explanations of the EPC given in G 1/19 it has to refer a question to the Enlarged Board (Article 21 RPBA). The Appellant did not propose a question to be referred, nor did it request that a suitable question be referred.

27. The Board itself sees no reason to deviate from G 1/19 in the present case.

27.1 The Appellant's argument that it should be possible to patent mostly abstract, mathematical inventions without a limitation to a specific technical application if they are generally applicable and have practical utility for a wide range of new products, may, from a business perspective, be a legitimate one. Although it may be assumed that the Appellant would find substantially less desirable an equally broad patent when held by a competitor.

27.2 But it was the lawmaker's choice to exclude from patentability, albeit only "as such", mathematical methods and programs for computers (see Articles 52(2) and (3) EPC).

27.3 Mathematical methods have always been generally appli cable (e.g. Pythagoras' theorem used to calculate dis tances) and been applied in many new - and undoubtedly technical - inventions. This did not prevent the legislator to list mathematical methods amongst the things which, as such, are not to be considered inventions. The fundamental nature of mathematical methods and their wide applicability may in fact have been a reason for excluding them from patentability.

27.4 The Board accepts that the use of the term technical in the case law of the Boards of Appeal may differ from its use elsewhere in society, especially from its colloquial use. However, this does not mean that the Boards of Appeal interpret the law incorrectly: it is common place that the legal interpretation of a term may differ from its colloquial meaning. In particular, the Boards use the term "non-technical" to denote matter excluded under Article 52(2) and (3) EPC. Any alternative interpretation of the terms "technical" and "non-technical" can only be used to justify the patentability of subject-matter to the extent that it does not contradict the law, in particular the exclusion of mathematical methods.

First and second auxiliary requests

28. The amendments in the first and second auxiliary requests cannot change the conclusion on inventive step as their substance has already been considered (see points 4, 5 and 19 above).

Third auxiliary request

Admittance

29. With the statement of grounds of appeal the Appellant had filed a third auxiliary request containing two independent system claims, of which the first one was similar to the one in the corresponding request underlying the decision. In its preliminary opinion, the Board indicated that it saw no reason for the presence of the second independent claim, which also caused issues with Rule 43(2)b) EPC, and was inclined not to admit this request.

30. With the letter of 14 May 2024, the Appellant filed the current third auxiliary request, which is the same as the previous one, but with the second independent claim deleted. This removes the only reason the Board had advanced for non-admitting the previous request, without introducing any new issues. For that reason, the Board admits this request (Article 13(2) RPBA, see also T 1294/16).

Inventive step

31. In substance, the claim now specifies the learned "con trol policy output" to be "configured for controlling" one of several technical systems (e.g. "an engine"), but gives no details about either the specific technical system or its model.

32. The Appellant argues that since a technical use is specified, a technical effect must be acknowledged. That is because the claimed approach has advantages for any technical field (see point 10 above).

33. The Board disagrees that any advantage of the claimed invention is established over the whole breadth of the claim or even for any of the broadly defined claimed technical systems.

33.1 The theoretical arguments advanced only make it cre dible that in some cases, depending on the considered scenario, i.e. the environment and the task at hand, on the configuration of the processing paths, stochastic and deterministic, of the output paths, and on the manner in which stochasticity is implemented, these advantages may be achieved. This is because the argu ments themselves are based on assumptions which are not developed, such as the structure of the optimization space, the type of stochasticity, the basic determinis tic algorithm, the extra effort that may be required for stochastic exploration in view of the extra rewards obtained etc.

33.2 Also, it is well known in machine learning that no optimization algorithm is better than another one across all possible instances, or uses (a statement of this type being generally referred as a "no free lunch" theorem). This can also be seen in the practical advice given in the corresponding paper of the inventors (see Section 7): "Stochastic activation is a general approach to improve A3C but not the panacea to every environment and task".

33.3 Notably, the authors found it worth saying this word of caution even in the context of controlled video games environments. Real-world scenarios may present further, unexpected challenges. The Board notes that, during the oral proceedings, the Appellant did refer to results in real world scenarios (ABS braking), but did not give - let alone submit - any further details about them, or any explanation as to how they would relate to the disclosure of the current application.

34. So the Board does not see sufficient evidence, be it by theoretical considerations, or by experiments, to con clude that a technical effect is present over the full breadth of the claim. In fact, neither the application nor the corresponding paper of the inventors provide sufficient evidence for a technical effect in any specific technical field.

Conclusion

35. None of the requests are allowable for lack of inventive step.

Order

For these reasons it is decided that:

The appeal is dismissed.