Cell Analysis: Non-technical

1. The application relates to cell analysis. It aims at identifying relationships between "elements configuring mechanisms that control vital phenomena in the cell" (paragraphs 1 to 7). The vital phenomena include, for instance a protein signalling cascade (see paragraph 15), and elements may be cell elements such as the nuclei, but also artificially added elements such as an inhibitor (see paragraphs 20 and 22).

2. For this purpose (see figure 3) images of cells are taken, the images are analysed to detect and segment the cells and their elements, and "characteristic quantities" (see e.g. paragraphs 73, 75, 77, 79, 82, 84 etc.) associated with the elements are extracted. Time series of such quantities are formed (paragraph 100) and correlated with one another (paragraphs 101 to 124). The elements and their correlation strengths are visualised as a graphical model, in which the elements form the nodes and each pair of elements is linked by a line with a thickness representing the correlation strength (paragraphs 125 and 126 and figures 23 to 25).

4. It stated that the claims covered the computation of a "practically unlimited" number of characteristic quantities and corresponding first and second correlations (decision, point 13). It also stated that it was not possible to derive, be it from the claims or from the description, which mechanisms were sought and which vital phenomena needed to be observed. The technical purpose of the model and the interpretation of the relationships were lacking (decision, point 15).

5.1 The Examining Division dismissed the Appellant's argument that the invention was a generic analysis tool capable of analysing images and relationships between elements which should be compared with – and treated like – an oscilloscope, stating: "The oscilloscope as such is a technical apparatus with a well-defined technical purpose and the choice of the quantities measured depends on the task at hand. In the present case, there is no technical purpose or an associated technical effect because the specific computations and the creation of the model illustrating relationships between predetermined elements of the cell is merely a way of manipulating data. The outcome, in the form of an interpretation of the vital phenomena relating to cells, as broadly stated in the description of the application, is left at the latitude of the user (in this case a biologist)" (decision, point 25).

6. In its preliminary opinion, the Board agreed with the Appellant that the invention, on the basis of the claims and of the description, was understood by the skilled person as providing only a "research tool", which did not relate to the investigation of a certain, particular, mechanism or phenomenon. Rather, the description and the claims emphasised the definition of a generic (graph) model based on correlations between time-series of observations. This model was presumably meant to help a researcher in their investigation of any given mechanism or phenomenon.

7. Implementing this research tool caused no difficulty for the skilled person, as the Examining Division also acknowledged. Accordingly, the invention could in fact be carried out by the skilled person as required by Article 83 EPC.

8. The extraction of several of the claimed characteristic quantities from an image might correspond to the measurement of physical quantities, but the extraction itself was assumed to be known. The alleged contribution was the creation of the graphical model.

8.1 In this respect, the Examining Division appeared to be correct in stating that the construction of this model was merely a way of manipulating data with no associated technical effect. The correlation data may or may not be useful, in the sense of representing real interactions or dependencies between elements in the cell. The Board also noted that the data produced by these calculations were, at best, meant to gain scientific knowledge about a natural system, which was insufficient to establish a technical effect according to G 1/19 (see reasons 98).

8.2 The Board noted that a case could be made that the correlation strengths, and the corresponding models, were a form of indirect measurement, and thereby inherently of technical nature (G 1/19, reasons 99). The Board understood the Appellant to have advanced the analogy with an oscilloscope or spectroscope in an attempt to support this view. However, neither the correlation strengths nor the corresponding models appeared to correspond to any specific physical property, so that, already for that reason, their derivation could not be considered as an (indirect) measurement.

12. The Board agrees with some of the Appellant's general arguments. Specifically, the Board agrees that whether or not a method is to be considered an (indirect) measurement method does not depend on the number of calculations involved, and that a method of measurement is of a technical nature regardless of what use is made of its results (G 1/19, reasons 99) and hence also where the results are used for a non-technical purpose.

The Board also agrees that the strength of the correlation between physical quantities, even a very small or zero correlation, provides information about physical reality.

13. However, the Board disagrees that all methods of obtaining information about physical reality are measurements within the meaning of G 1/19 (reasons 99).

13.1 The Board considers that any measurement method within that meaning, whether indirect or not, or corresponding device, must be intended to determine a specific and predefined physical quantity. A method of measurement may be called "indirect" if it determines the physical quantity of interest on the basis of the measurement of one or more different physical quantities and a known factual relationship between these quantities.

13.2 Methods comprising the measurement of physical quantities followed by calculations to derive values of interest from the measured values are therefore not indirect measurement methods, unless the calculations correspond to a known factual relationship between the quantities involved and are used to determine the physical quantity of interest.

13.3 For instance, the calculation of a value which does not represent information about physical reality at all, e.g. the price of a refreshment which rises with the measured temperature, is not part of a measurement method. But even if the calculated value provides information about physical reality, for instance a correlation value between physical quantities, that value itself may or may not correspond to a physical quantity. For illustration, a correlation between substance concentration inside and outside a cell may represent the membrane permeability to that substance, so that correlation value would qualify as a physical quantity. But other correlation values may not correspond to any physical quantity (e.g. the correlation between the shape of a desk and the lighting in a room, as was discussed with the Appellant during the oral proceedings), or that correspondence may not, or not yet, be known.

13.4 Correlations between physical quantities contain information which a scientist can use to investigate, and possibly establish, the relationships between physical quantities. But unless such a factual relation­ship is actually established, these values are "just data, which may be used, for example, to gain scientific knowledge" (G 1/19, reasons 98) and obtaining them is not a measurement within the meaning of G 1/19, reasons 99.

14. It is neither self-evident nor explained in the application that each of the many individual "characteristic quantities" disclosed (see the references in paragraph 2 above) actually represents a physical quantity of the cell. But at any rate this is not established for the claimed characteristic quantities as they remain entirely undefined.

14.1 Even if it were accepted that these characteristic quantities did represent physical quantities and that extracting them from an image constituted a form of measurement, the correlation values are not set out as measurements of any specific and predefined physical phenomenon relating two quantities (e.g. a permeability coefficient). The fact that they convey information reflecting physical reality is not sufficient for them to be qualified as indirect measurements (see point 13 above).

14.2 The same holds for the obtained model, which may or may not represent biochemical pathways and signalling mechanisms.

14.3 The model might assist a scientist in determining actual cell properties, but the claimed device (or method) alone does not achieve this.

15. The Board therefore arrives at the conclusion that neither the device according to claim 1 nor the method according to claim 12 provides indirect measurements in the sense of G 1/19, reasons 99. Also, the claims do not state or imply any technical use. The claimed invention thus does not provide any technical contribution and hence cannot be considered to involve an inventive step in the sense of Article 56 EPC.