Introductory example
By the late 1990s and early 2000s, the principle of online auctions was already well established. Technically, these processes usually ran on a central server connected to several clients, with procedures reminiscent of traditional auction halls. Bids were made in real time, which had significant disadvantages for slow or unstable internet connections: participants could miss bids or lose valuable seconds during transmission, making the auction unfair and inefficient for them.
The new process addressed this issue by replacing the real-time mechanism with a system with a fixed deadline. All interested parties had to submit their bids by a certain time. A bid consisted of two elements: a desired price that the bidder considered reasonable and a maximum price that they were willing to pay in the event of competitive bidding. After the deadline, the server collected all bids received, evaluated them, and determined the winner based on the specified limits.
This eliminated the dependence on fast data lines. Each bidder could participate regardless of their connection status, as the speed of the click was no longer important. At the same time, transparency increased because all bids were treated uniformly and the allocation was based solely on the desired and maximum amounts specified. The procedure thus promised fairer conditions and a significantly more efficient handling of Internet auctions.
In Europe, Inventions are only patentable if they are technical. The criterion of technicality is therefore a fundamental prerequisite for patentability. If the patent claim is not technical, no patent may be granted for the teaching of the claim. If, nevertheless, a patent has been granted for a non-technical teaching, this patent is invalid and can be revoked in nullity proceedings. Technicality thus acts as a fundamental barrier that prevents purely abstract or non-technical concepts from falling within the scope of patent law.
The requirement of technicality is not positively defined in patent law. The law does not specify which features or characteristics an invention must have in order to be considered technical. Instead, access to patent protection is limited by certain exclusions. This means that the law defines a list of what is not considered technical and is therefore excluded from patent protection. In this regard the law excludes business methods, scientific theories, aesthetic creations, mental activities, and computer programs.
If we consider the auction process in its pure business concept, i.e., without reference to a computer network or technical implementation, a patent claim could read as follows: "Auction procedure in which bidders submit a desired bid and a maximum bid by a specified time, and after the deadline has expired, the bid is awarded to the bidder whose bids have the highest value." And this methode can be further defined by certain steps.
Such a claim describes only the organizational handling of the bidding process. It does not contain any technical measures that solve a technical problem or have a technical effect, but is limited to an abstract regulation of the business process. In this form, the process would therefore not be technical in the sense of patent law and could not be recognized as an invention.
In patent law, a feature is generally considered technical if it has an effect in the real world. This is particularly clear when a physical element is claimed or affected. Any invention that has a concrete physical form—such as a component, a device, or a measurable physical change—meets this criterion. In the case of processes, too, technicality can usually be demonstrated if the process influences the physical state of the world, for example through chemical reactions, mechanical movements, or energetic changes. However, it is crucial that the patent claim is worded in such a way that only technical embodiments fall under its protection. If non-technical variants were also covered, the technical nature of the entire claim would be called into question, which could lead to the patent being refused or invalidated.
This can be illustrated in practice by the example of a computer network. Such a network is not an abstract concept, but a real technical system for data transmission. It is based on physical processes, such as the transmission of electrical signals in cables or electromagnetic transmission via radio waves. This use of physical conditions gives the feature "computer network" a clear technical character.
Patent claims or inventions may contain both technical and non-technical features; these are referred to as mixed inventions. This is particularly evident in the case of computer-implemented inventions: a computer or computer network is indisputably a technical system, but it can implement very different content. On the one hand, it can be used to control a physical process, such as regulating a motor or controlling a medical device. In this case, the claimed features directly contribute to a technical effect in the real world. On the other hand, the same computer can be used simply to execute a business method or an organizational rule—in this case, there is no technical contribution, as only an abstract concept is executed on an existing machine. In the case of patent claims or inventions that combine technical and non-technical features, case law has clarified that technicality is already present if at least one technical feature is included. It does not matter if non-technical features are included in a patent claim.
A patent claim could read, for example: "Method for conducting an auction in which several clients are connected to a server via a computer network, each client transmitting a desired bid and a maximum bid to the server, and the server determining the winner on the basis of the data received after a time limit has expired [...]".
This claim undoubtedly contains technical features – namely the computer network, the clients, and the server used for data transmission. This means that the claim as such is technical. However, whether it also meets the criteria of novelty and inventive step must be examined separately.
The following applies to the examination of novelty (and inventive step) of mixed inventions: Only technical features may be taken into account. A feature makes a technical contribution if it solves a technical problem or has a technical effect. Purely commercial, organizational, or other non-technical features may influence the scope of protection of a patent claim, but they do not contribute to the assessment of novelty or inventive step. This ensures that patentability cannot be based on mere business ideas or abstract rules, but solely on technical solutions.
In the auction process of the late 1990s and early 2000s, the state of the art already included server-client networks for real-time auctions. The innovation consisted of working with deadline-based bids and maximum bids instead of real-time bids. Although this concept improves the fairness of the auction and makes it easier for users with slow connections to participate, it is based on a changed business logic. Technically, the server and network continue to operate unchanged and transmit data according to the same protocols. Consequently, although a technical framework (the network) is in place, the actual improvement (the auction procedure) is not technical in nature. This contribution is not taken into account when assessing novelty and inventive step, and thus there is no technical progress that could justify a patent.
