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This forms part of a wider report on the 2022 updates to EPO Guidelines for Examination.
This section G-II, section 3.6.3 includes a minor clarification (underlined below):
“A data structure or format contributes to the technical character of the invention if it produces has an intended technical use and it causes a technical effect when used according to this intended technical use. Such a potential technical effect related to an implied technical use is to be taken into account in assessing inventive step (G 1/19). This may happen if the data structure or format is functional data, i.e. if it has a technical function in a technical system, such as controlling the operation of the device processing the data. Functional data inherently comprise, or map to, the corresponding technical features of the device”
More importantly, this has been added:
“Digital data is used to control devices in additive manufacturing (AM), which is the general term for technologies manufacturing physical objects by successive addition of material based on a digital representation of the geometry of the object. If the data defines the instructions for operating the AM device, it makes a technical contribution as illustrated in the following example:
Example
A computer-readable medium storing data which defines both a digital representation of the product of claim 1 and operating instructions adapted to control an AM device to fabricate the product using the digital representation of the product when said data is relayed to the AM device.
Remarks
A computer-readable medium is a technical object, so no objection under Art. 52(2) and (3) arises.
Since the data comprises both a digital description of the (physical) product of claim 1 and associated operating instructions adapted to control an AM device, it is intended to be used to control an AM device to fabricate the product. This technical use of the data is implied across substantially the whole scope of the claim. Construing the present claim to encompass a non-technical use of merely visualising the data would be artificial. The technical effect of fabricating the physical product defined in claim 1 that is achieved when the data is used according to its intended use is thus a potential technical effect that is to be taken into account when assessing inventive step. The digital representation of the product makes a technical contribution to the extent that it defines technical features of the fabricated physical product.
However, if such a technical use of the data were not implied by the claim, the potential technical effect of the data of fabricating the physical product could not be taken into account when assessing inventive step as it would not be implied across substantially the whole scope of the claim. This would be the case, for instance, if the data defined only a digital description or 3D model of the product that is not adapted to additive manufacturing of the Part G – Chapter II-22 Guidelines for Examination in the EPO March 2022 (Draft) product and could be used to merely visualise the product in a CAD software tool. Abstract descriptions or models are not considered technical even if the described entities are technical (see G-II, 3.3.2). In such a case, the stored non-technical data would not make a technical contribution.”
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