Author Archive

Patenting AI in the EPO guidelines

In this (very first!) episode of the Best Practice podcast, Bastian walks you through the section on AI and machine learning in the EPO’s patent examination guidelines. He makes the point that they are too restrictive when it comes to patenting AI innovations.

Illustrations on a scale carrying cognitive content: technical

In this decision, the board of appeal assessed whether “illustrations”, in the context of a claim for a system, imply the presence of a concrete physical medium carrying the illustrations. Here are the practical takeaways from the decision T 0670/19 of 20.11.2020 of Technical Board of Appeal 3.2.01:

Key takeaways

The implicit presence of a physical medium does thus confer technical character to at least part of the subject-matter of the independent claim and this regardless of a possibly non-technical nature of the cognitive content of the illustrations carried by or displayed on the physical medium “per se”.

The invention

This European patent application concerns scales for performing clinical assessment of an individual, in particular to effectively rate lip fullness or the severity of perioral lines or oral commissures.

According to the application, such scales would be useful in both clinical practice and clinical trial research. Particularly, in clinical trial research, objective quantification is critical to measure the efficacy of an investigational treatment by comparing the severity of a condition before treatment to that measured after treatment. For a new treatment to achieve regulatory approval for marketing, its efficacy must be documented in clinical trials. Valid and reliable outcome measures are also important in evidence-based medicine to provide comparisons among similarly designed trials in the literature.

Fig. 3 of EP 2 369 956
Fig. 3 of EP 2 369 956

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the patent application based on the conclusion that claim 1 related to abstract subject-matter excluded from patentability under Articles 52(2) and (3) EPC.

On appeal, the board did not agree that claim 1 is excluded from patentability and concured with the appellant that the invention as claimed does not relate to purely abstract subject-matter in the meaning of Articles 52(2) and (3) EPC. Instead, the board confirmed that claim 1 does have a technical character:

Claim 1 relates to a system comprising a plurality of scales each of them being associated with one specific characteristic of the mouth area, wherein each scale comprises in turn a plurality of illustrations representing different severity levels of the respective characteristic. The Board is convinced by the argument of the appellant that the feature “illustration”, in the context of a claim for a system, does imply the presence of a concrete physical medium carrying said illustrations and from which they can be viewed or displayed, for example a sheet of paper, a board, a display or the screen of a computer or tablet. The implicit presence of a physical medium does thus confer technical character to at least part of the subject-matter of the independent claim and this regardless of a possibly non-technical nature of the cognitive content of the illustrations carried by or displayed on the physical medium “per se”. Therefore, unlike the assessment of the examining division, the Board agrees with the appellant that the subject-matter of claim 1 is an invention within the the meaning of Article 52(1) EPC as it does not fall under the exceptions to patentability presented in Article 52(2) and (3) EPC.

Accordingly, the appeal was set aside and the board remitted the case to the examining division for further prosecution.

More information

You can read the whole decision here: T 0670/19 of 20.11.2020

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Distributing rewards by assigning users to partial areas of an advertisement banner: technical

In this decision, the board of appeal once more used the concept of the notional business person to draw the line between technical and non-technical features. Here are the practical takeaways from the decision T 2314/16 (Distributing rewards by assigning users to partial advertisement display areas/RAKUTEN) of 7.9.2020 of Technical Board of Appeal 3.5.01:

Catchword

The specification of the business method ended with how to determine the reward distribution ratio. The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, were based on technical considerations of the web page system. It was not motivated by any business considerations. … In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works. Thus, this feature cannot be part of the non-technical requirements. Instead it is part of the solution that has to be evaluated for obviousness. (See point 2.10 of the reasons)

The invention

This European patent application concerns the distribution of rewards to participants in an affiliate marketing scheme. Affiliate marketing is an advertising model in which an influencer receives a reward for advertising a product or service, e.g. by including a link on a blog or endorsing a product on social media.

In the invention, the influencers are each allocated a portion of an advertisement banner displayed on a web site (Figures 5A and 5B). The areas are not visible to the visitor of the web site, but the visitor just sees an advertising banner. When the visitor clicks on the banner, the influencer whose portion was clicked on gets a reward. Over time, the rewards will be distributed according to the sizes of the image portions.

The idea was to allocate the partial areas such that the reward distribution rates match the degree of contribution of each user (influencer) to the advertising of the product or service.

Fig. 5B of EP 2 587 446
Fig. 5B of EP 2 587 446

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the patent application based on lack of inventive step, the main argument being that the distinguishing features constituted an obvious implementation of a set of non-technical requirements.

On appeal, it was common ground that claim 1 contains a mixture of technical and non-technical features. The board noted that the information providing device is clearly a technical device, whereas the distribution of rewards to influencers is a business idea.

First of all, the board therefore gave a nice summary of the EPO’s approach to mixed-type inventions:

The established approach for dealing with such mixed-type inventions is the “Comvik approach” (T 641/00 – Two identities/COMVIK). In this approach, only the features which contribute to the technical character of the invention may be taken into account in the assessment of inventive step. Non-technical features which do not make such a contribution are instead treated as being part of the technical problem to be solved, which is often formulated as a set of requirements to implement. Thus, as the appellant argued, a crucial step in this approach is to distinguish between the technical features and the non-technical features.

The appellant is correct in that there is no positive definition of ‘technical’ in the EPC.

However, Article 52(2) EPC provides a non-exhaustive list of subject-matter that should not be regarded as technical inventions, for example “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers” (Article 52(2)(c) EPC).

Also, over the years, the case law has provided further guidance on the issue of technicality. In COMVIK, a technical feature was defined as a feature which contributed to the solution of a technical problem by providing a technical effect (reasons, point 6). Thus, features which are prima facie non-technical may interact with the technical subject matter of the claim so as to produce a technical effect (T 154/04 – Estimating sales activity/DUNS LICENSING ASSOCIATES, reasons points 13 and 15). The technical effect must be actually achieved by the feature in question, and it must not be a mere consequence of a modified business scheme (see T 258/03 – Auction method/HITACHI, which held that method steps consisting of modifications to a business scheme and aimed at circumventing a technical problem rather than solving it by technical means could not contribute to the technical character of the subject-matter claimed).

In the field of computer-implemented methods, the technical effect of the invention is often its implementation on technical means. In such cases, it is not always straightforward to determine which features contribute to the implementation, and which features are part of the non-technical requirements to be implemented. Generally speaking, features which are based on technical considerations of the technical system on which the requirements are implemented have technical character and thus may contribute to inventive step (T 792/92 – General purpose management system). However, pure software concepts do not contribute to the technical implementation, because programs for computers are excluded matter under Article 52(2) EPC (T 1755/10 – Software structure/TRILOGY, reasons point 6, and G 3/08 – Programs for computers, point 13.5).

In T 1463/11 (Universal merchant platform/CardinalCommerce), the Board introduced the concept of the notional business person to help separate business considerations and technical considerations. The business person, who is just as fictional as the skilled person in Article 56 EPC, may formulate business requirements but will not include any technical matter. This approach ensures that, in line with the Comvik approach, all the technical matter, including known or even notorious matter, can contribute to inventive step and is therefore considered for obviousness.

The appellant argued that the invention produced a technical effect which went beyond the mere implementation of a business method, namely reducing the processing load for calculating the reward rates. But the Board was not persuaded that this effect is actually achieved, for two reasons:

Firstly, the effect is not derivable based on a comparison between the claimed invention and the starting point in the prior art. In the problem and solution approach, the objective technical problem is formulated based on the difference between the claimed subject-matter and the prior art chosen as the starting point (the closest prior art). In the present case, the starting point is a server-side image map. The effect of reducing the computational load is based on a comparison between the claimed invention and another, hypothetical method of distributing rewards. Since the effect cannot be derived from the difference between the claimed invention and the server-side image map, it cannot form the basis of the technical problem. Thus, in the Board’s view, the technical problem vis-à-vis the server-side image map is merely the implementation of the reward calculation.

Secondly, even compared with a method of calculating rewards using division, the invention does not contain enough technical detail to credibly achieve the effect argued by the appellant. For there to be a reduction in processing load, the computational savings of avoiding division must outweigh the complexity introduced by processing image maps. Since the application does not contain any detailed embodiment of the server-side processing of coordinate information, it is not clear that there is a reduction in computation load, let alone a reduction over the whole scope claimed. This shows the importance of including an embodiment in support of the technical effects relied on, because this might enable them to be verified.

The technical problem was thus formulated as the implementation of the reward distribution. The remaining question was which features are part of the requirement specification and which features are part of the technical implementation:

The appellant argued that the specification of the business method ended with how to determine the reward distribution ratio. The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, were based on technical considerations of the web page system. It was not motivated by any business considerations.

The Board agrees with the appellant that the allocation of users to partial image areas is not within the domain of the business person. In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works. Thus, this feature cannot be part of the non-technical requirements. Instead it is part of the solution that has to be evaluated for obviousness.

Starting from the HTML server-side image map and given the problem of implementing the business requirement of distributing rewards to a number of users according to certain reward distribution rates, the Board judges that it would not have been obvious to assign users to partial areas of an image as in claim 1. Although the means for implementing this was available in HTML, there was no motivation for the skilled person to do so.

Accordingly, claim 1 was found to involve an inventive step. The board thus remitted the case to the examining division with the order to grant a patent.

More information

You can read the whole decision here: T 2314/16 (Distributing rewards by assigning users to partial advertisement display areas/RAKUTEN) of 7.9.2020

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Determining ranges of identifiers for items packed in a container: non-technical

In this decision, the board of appeal once more uses the concept of the notional business person to draw the line between technical and non-technical features. Here are the practical takeaways from the decision T 0232/14 (Method and apparatus for identifying, authenticating, tracking and tracing manufactured items) of 6.10.2020 of Technical Board of Appeal 3.5.01:

Catchword

The Board judges that using ranges of unit identifiers to label a number of (consecutive) unit identifiers of manufactured items is, at the level of generality at which it is claimed, on the business side of the line between technical and non-technical subject-matter (see e.g. T 144/11 – Security rating System / SATO MICHIHIRO, points 2.1, and 3.6 to 3.9).(See point 2.5 of the reasons)

The ranges of unit identifiers do have a meaning for the business person. They correspond to batches of units produced on a production line. (See point 2.6 of the reasons)

Even if the “determining of ranges of unit identifiers” achieved a technical effect, such as reducing data storage and data bandwidth requirements, it is a matter of routine design for the skilled person, a software programmer or a database expert, based on common general knowledge to store the first and the last element of a list of items, instead of the whole list. (See point 2.9 of the reasons)

The invention

This European patent application concerns the identification of specially taxed or branded manufactured items (e.g. cigarette cartons) packaged into containers. Identification allows products to be authenticated as genuine, tracked and traced, which helps to detect contraband and counterfeit products. Conventional identification systems stored an individual record of the identifier for each item in the container together with its associated container identifier. According to the application, this requires a large amount of data storage.

The invention essentially replaces the individual records with ones representing any contiguous ranges of identifiers for items packed in a container. Since items are generally packed as they are produced, there are fewer ranges than items and thus fewer records in the database.

Fig. 1 of EP 2 272 038
Fig. 1 of EP 2 272 038

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the patent application based on lack of inventive step.

On appeal, there was common ground that claim 1 differed from the closest prior art by the last two features of claim 1:

  • “for each container, determining one or more ranges of unit identifiers of the two or more units allocated to the container”
  • “storing, in a database, a container identifier for each container, each container identifier being coupled, in the database, to the one or more ranges of unit identifiers of the two or more units allocated to the container”

One of the central questions was whether the determination of ranges of unit identifiers is technical or not. The examining division had taken the view that this feature was part of the requirement specification of an administrative scheme for the identification of manufactured items in containers.

The appellant, on the other hand, argued that ranges of unit identifiers did not have a meaning for the business person because they did not exist in the business area. They would be used in combination with production details and only for saving storage space, which was a technical contribution. This further enabled an authentication process to be implemented for products which were produced in very high numbers using standard data processing equipment. Hence, the requirement specification could only be formulated along the lines of “we need an identification and authentication system like we have for products that are shipped in containers, but which can be implemented practically and economically for very high volume units, such as cigarette packs”.

However, the board disagreed:

The Board however agrees with the examining division that this feature belongs to the business specification. The Board judges that using ranges of unit identifiers to label a number of (consecutive) unit identifiers of manufactured items is, at the level of generality at which it is claimed, on the business side of the line between technical and non-technical subject-matter (see e.g. T 144/11 – Security rating System / SATO MICHIHIRO, points 2.1, and 3.6 to 3.9).

The ranges of unit identifiers do have a meaning for the business person. They correspond to batches of units produced on a production line. This is apparent from Table 2 of the application, where a first batch is produced at 10:11 and a second batch at 10:12. In Example 1 on page 14 of the application, ranges of counter values correspond to cartons which were produced in the same time period. In Example 3 on page 15, the ranges correspond to cartons produced in batches of different production lines. In Example 2 on page 15, the ranges correspond to as many individual cartons as are packed together into one shipping case. The ranges of unit identifiers in all examples are not different from the general understanding of what a batch is in production, see, for example, D1, paragraph [0023]. Therefore the determination of ranges of unit identifiers is rather linked to the number of possible ways of organising items of a group of items based on how they are produced, that is, the number of batches, than to the way in which data can be stored.

The Board agrees with the examining division that the use of an (electronic) database for the storage of data, that is, the ranges of unit identifiers, was a straight-forward consequence of the requirement specification when implementing it on a data processing system, such as the one cited in the prior art. An (electronic) database was known in the prior art, for example, from WO 2006/038114, page 7, lines 5 to 11, and D1, paragraphs [0031] to [0032], where a checking center 30 receives and centralises product data, and has access to database 31, page 15, lines 13 to 15, and D1, paragraph [0065]. The person skilled in the art when implementing the business requirements would straight-forwardly store in the database a container identifier for each container, each being coupled, in the database, to the one or more ranges of unit identifiers allocated to the container. The saving in storage space is a mere “bonus effect”.

Therefore, the board concluded that claim 1 of the main request lacks an inventive step.

The board also noted that the case was no different even if the “determining of ranges of unit identifiers” achieved a technical effect, such as reducing data storage and data bandwidth requirements:

It is a matter of routine design for the skilled person, a software programmer or a database expert, based on common general knowledge to store the first and the last element of a list of items, instead of the whole list. If a list comprised non-consecutive numbers with numbers missing, then the skilled person would recognise without requiring inventive skills that several ranges can be defined to exclude the missing numbers. In an example of a list of items ranging from 1 to 50 with missing numbers 11, 12, 33, 34 and 35, the skilled person would store three ranges from 1 to 10, 13 to 32 and 36 to 50.

As a result, the board dismissed the appeal.

More information

You can read the whole decision here: T 0232/14 (Method and apparatus for identifying, authenticating, tracking and tracing manufactured items) of 6.10.2020

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Mapping a voice request to the user who issued the request: technical

This application concerns the field of man-machine interaction for users interacting with digital networks. Here are the practical takeaways from the decision T 0929/15 (Identifying a user issuing a voice request/ACCENTURE) of 17.11.2020 of Technical Board of Appeal 3.5.05:

Key takeaways

Reliably and conveniently mapping a voice request to the user who issued the request is a technical problem.

The invention

This European patent application concerns a computer network and a server for natural language-based control of a digital network. In particular, the invention has a view towards digital home networks comprising a plurality of devices such as a personal computer, a notebook, a CD player, a DVD player, a Blu-ray Disc™ playback device, a sound system, a television, a telephone, a mobile phone, an MP3 player, a washing machine, a dryer, a dish washer, lamps, and/or a microwave, etc.

According to the application, such increasingly complex digital networks lack a unified and efficient way to be managed and controlled by users. Furthermore, digital networks require a user to learn and to interact with a plurality of different, often heterogeneous, user interfaces in order to satisfactorily interact with the different devices associated in a digital network.

The invention therefore sets out to provide for improved man-machine interaction for users interacting with digital networks.

Fig. 2 of EP 2 498 250
Fig. 2 of EP 2 498 250

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

According to the board of appeal, claim 1 differed from the closest prior art in that the processing of a natural language-based voice request, besides producing a list of tags, also results in the identification of the user that provided the request. In particular, the user is identified by processing incoming voice samples of each request, extracting features therefrom and matching the extracted features against stored voice prints of users.

The board accepted that this features produces a technical effect as follows:

This distinguishing feature has the technical effect that each voice request is associated with the identity of the user who issued it, without the need for the user to explicitly input their identity.

The objective technical problem solved by this feature can thus be regarded as how to reliably and conveniently map a voice request to the user who issued the request.

The solution suggested in claim 1 was to biometrically identify the user who issued the voice request, based on features of the voice sample. The board concluded that this solution was not rendered obvious by the available prior art:

D4 suggests in several paragraphs, notably [0089] and [0092], that a group of users can each have a respective companion, or make use of a central companion running multiple processes for each user. However, it is silent on the complications that may arise in these scenarios, in particular how the companion(s) is/are to map a received voice request to a particular user. The appellant convincingly argued that even though D4 suggests, notably in paragraph [0094], that user authentication be required in order to access a companion – an authentication which might also take the form of an audio signature or a biometric signature – D4 consistently teaches (e.g. paragraph [0035]) that in such cases user identification is a precondition for accepting any request from the user. This teaches away from identifying the user while the received request is being processed.

Therefore, the claimed solution would not be obvious to the skilled person based on D4 alone. Nor would the skilled person be guided by the remaining documents on file to arrive at the solution in claim 1, since these documents are either entirely silent on providing a voice user interface or do not suggest user identification based on voice.

Therefore, the board remitted the case to the examining division with the order to grant a patent.

More information

You can read the whole decision here: T 0929/15 (Identifying a user issuing a voice request/ACCENTURE) of 17.11.2020

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Machine learning-based driver alertness detection: insufficiently disclosed

In this decision, the European Patent Office did not grant a patent on a machine learning-based driver alertness detection system. Here are the practical takeaways of the decision T 0509/18 of 3.3.2020 of Technical Board of Appeal 3.2.01:

Key takeaways

No mathematical methods and corresponding criteria allowing to handle said matrix and obtain a “look-up-table classification” are disclosed or even suggested in the description.

The invention

This European patent application generally relates to a monitoring system to monitor the alertness of a driver and issue a warning if it is determined that the driver is distracted for a sufficient period.

Fig. 1 of EP 2 688 764
Fig. 1 of EP 2 688 764

Here is how the invention is defined in claim 1:

  • Claim 1 (third auxiliary request)

Is it patentable?

The first-instance examining division had refused the patent application based on lack of novelty. After the applicant had filed a new main request and a series of auxiliary requests on appeal, the board of appeal still concurred with the examining division, and in addition took raised an objection under Art. 83 EPC (disclosure of the invention).

According to the board, the central feature of the claimed driver alertness detection system was that “the driver alertness detection system is configured to use a classification training process to register the driver’s head position and eye vector for the A-pillars, instrument panel, outside mirrors, rear view mirror, windshield, passenger floor, center console, radial and climate controls within the vehicle, and configured to save a corresponding matrix of inter-point metrics to be used for a look-up-table classification of the driver’s attention state, the inter-point metrics being geometric relationships between detected control points and comprising a set of vectors connecting any combination of control points including pupils, nostrils and corners of the mouth”.

But the board took the view that the application did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art:

In the Board’s view the definition of claim 1 and the corresponding passages in the patent application (WO-A) do not teach the skilled person how a “look-up-table classification of the driver’s attention state” is to be obtained by the skilled person, based on said “matrix of inter-point metrics”, the inter-point metrics representing “geometric relationships between detected control points and comprising a set of vectors connecting any combination of control points including pupils, nostrils and corners of the mouth”.

In particular, WO-A does not teach how to derive from said “matrix of inter-point metrics” a “look-up-table classification of the driver’s attention state”, such a “look-up-table classification” permitting to decide on the driver’s attention state. A “matrix of inter-point metrics” being a mathematical object representing a set of “geometrical relationships between detected control points” according to WO-A (and to claim 1), a specific mathematical method and corresponding criteria (or algorithms) necessarily have to be determined in order to be able to handle said matrix and to deal with said matrix. No such mathematical methods and corresponding criteria allowing to handle said matrix and obtain a “look-up-table classification” are disclosed or even suggested in the description of WO-A. In addition, the actual specific form and construction of said “matrix of inter-point metrics” is likewise not specified in WO-A. Therefore the skilled person would not know how to construct a “look-up-table classification” and consequently how to decide on the driver’s attention state based on the video camera’s image of the actual position of driver’s head and eyes at a given instant.

In addition, claim 1 and WO-A likewise do not teach how a video camera’s image representing the instant position of a driver’s head and eyes (as seen e.g. in figures 8A, B or C) should be actually compared with a hypothetical “look-up-table classification” in order to assess the driver’s attention state. In effect, this step requires instructions and teaching concerning the kind of information to be extracted from a given video camera image and concerning the method and the criteria (similarly as above) to be applied in order to compare this information with the information included in the hypothetical “look-up-table classification”. No such disclosure is to be found in the description of the patent application (WO-A).

The same conclusions apply a fortiori to claim 1 of the main, first and second auxiliary request, since the subject-matter of each of these claims includes only part of the features of claim 1 of the third auxiliary request, thus including even less information than is included in claim 1 of the third auxiliary request.

The board hence concluded that the application did not disclose the invention in a manner sufficiently clear and complete for the skilled person to be able to carry out e.g. a “classification of the driver’s attention state”. The appeal was dismissed.

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Functional implementation of a lottery game: non-technical

This decision is a good reminder that the technical implementation of an otherwise non-technical method has to be rather specific to be patentable. The more high-level and functional the implementation is claimed, the lower the chances of success at the EPO. 

Here are the practical takeaways from the decision T 0886/14 (Lottery game/Al-Ziyoud, Aiman H.) of 16.11.2020 of Technical Board of Appeal 3.5.01:

Key takeaways

The technical implementation is only claimed in functional terms and there are no details of how it is actually achieved. Hence, at the level of detail of claim 1, the advanced effects of reducing latency and redundancy are not further technical effects which could give rise to an objective technical problem.

The invention

This European patent application concerns a system for playing a lottery game with a progressive accumulative jackpot. The jackpot grows with each lottery ticket because a portion of the purchase price goes into the jackpot.

The lottery system described in the application comprises a central lottery system connected to a number of remote communication devices via a public telecommunications network:

Fig. 1C of EP 1 623 375
Fig. 1C of EP 1 623 375

The players use their communication devices to request lottery tickets from the central lottery system. The central lottery system comprises an input terminal, e.g. a web server, for receiving the request from the remote communication device, a central server, and a database for storing the jackpot size.

Having received the ticket request, the central lottery system assigns the requested number of lottery tickets to the player and bills him. Next, the system updates the jackpot size in the database by adding to the jackpot (a portion of) the price of the purchased tickets. The updated jackpot amount is then provided to the central server, which transmits it to a presentation device for display.

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step. The argument was that claim 1 then on file addressed the problem of defining rules for playing a game, automation of administrative methods, and presenting information, whereas the implementation of these aspects included only the use of conventional computing components.

The board of appeal agreed with the examining division that a conventional client/server system was an appropriate starting point for assessing inventive step in this case. Claim 1 was found to differ from a conventional client/server system in that

  • the server receives, from the remote client, one or more lottery purchase orders,
  • stores the accumulated jackpot amount (“latest lottery prize amount” in claim 1),
  • updates the jackpot amount automatically based at least partially on the received lottery purchase price, and
  • provides the updated jackpot value to a presentation device automatically when the jackpot value has been updated.

According to the appellant, the claim defined an asymmetric information path between a user and the server. The user inputting the lottery purchase order to the server did not receive the latest jackpot amount; the jackpot amount was instead broadcast to prospective users via television, radio, or a website. This was a difference over the conventional client/server system where data exchanged between a client and a server always followed a symmetrical path. But the board did not follow this argument:

In the Board’s view, however, the claim does not exclude that the remote communication device and the presentation device is one and the same device. Indeed, according to the application (see page 12, lines 21 to 22 and lines 25 to 26), the presentation device can be a computer device providing displaying capabilities.

In any case, the presentation is not limited to television, radio, or a website. Furthermore, the claim wording covers not only broadcast but also unicast and multicast. Therefore, the Board does not agree that the alleged asymmetry is present in claim 1.

Irrespective of this finding, the board also noted that the requirement that the jackpot value be provided to all players, including prospective players, is a non-technical one:

Like the examining division, the Board takes the view that the claimed subject-matter aims at implementing a method for playing a lottery game, which, when taken as such, would be excluded from patentability pursuant to Article 52(2)(c) and (3) EPC.

The non-technical method of playing a lottery game comprises:

– One or more players request and purchase one or more lottery tickets.

– The lottery is organised by a lottery organiser.

– The lottery scheme includes adding a portion of the purchase price to an accumulative jackpot.

– Each time the jackpot value is increased, it is immediately notified to the requesting lottery player or all lottery players.

Under the COMVIK approach (see decision T 641/00) the non-technical features cannot contribute to inventive step.

The appellant argued that the invention produced a number of technical effects. For example, the server transmitted only the updated jackpot value which avoided a wasteful and redundant transmission of values that have already been transmitted. Furthermore, the server provided the updated jackpot value in real-time and not following some delay. As a result, the technical effect of reducing latency in data transmission was provided. But also these arguments did not succeed:

The Board considers, however, that the effects advanced by the appellant are not (further) technical effects counting towards inventive step. The non-technical method includes that a jackpot value should be provided without delay when it is updated. It follows that the effects advanced by the appellant result from the lottery method per se rather than from its technical implementation. The technical implementation is only claimed in functional terms and there are no details of how it is actually achieved. Hence, at the level of detail of claim 1, the advanced effects of reducing latency and redundancy are not further technical effects which could give rise to an objective technical problem. Furthermore, any asymmetric information exchange would also be a direct result of the non-technical requirement that the jackpot value should be provided to all players.

The Board notes that this finding is in line with the established case law represented i.a. by decision T 258/03 (see points 5.6 to 5.7 of the reasons) and decision T 172/03 (see point 22 of the reasons).

In the appellant’s opinion, the objective technical problem was how to provide a platform for the implementation of a lottery capable of providing both participants and prospective participants real-time data about the jackpot total. The Board considered, however, that this problem was not correct …

… as, contrary to the COMVIK-principle, it does not comprise all parts of the above non-technical method for playing a lottery game. In line with the COMVIK-principle, this method cannot contribute to inventive step and is instead provided in its entirety to the technically skilled person as part of the framework of the objective technical problem. Hence, in the Board’s judgement, the skilled person faces the objective technical problem of implementing the lottery method on the conventional client/server system.

Furthermore, the Board considered that the claimed implementation would have been obvious to the skilled person facing the above problem:

In particular, it would have been obvious to implement the lottery game functionality including maintaining and updating a jackpot at the central server. Indeed, it is already given as part of the game rules that the lottery is organised centrally. It would also have been obvious to implement functionality for requesting tickets at client computers connected to the server; this could be done for example using web page forms provided from the server to the remote devices. Finally, providing the jackpot value to all participating players could be straightforwardly accomplished for example by sending automatically generated emails to all players’ client computers and by displaying their content.

The appellant also argued that it would not have been obvious at the priority date to present the exact value of the updated jackpot, because lottery systems known at that time rather presented an estimated jackpot amount. But also this argument was not successful:

However, the question whether the skilled person would consider notifying the exact value of the updated jackpot to players in real-time does not arise here, because that has already been decided in formulating the objective technical problem. Therefore, the skilled person would seek to provide such functionality because the problem requires him to do so regardless of whether lottery schemes adopted this solution at the priority date or not. The only question is how it would be done, but, as outlined above, the Board considers the claimed implementation to be obvious.

Therefore, the board concluded that claim 1 did not involve an inventive step, and dismissed the appeal.

More information

You can read the whole decision here: T 0886/14 (Lottery game/Al-Ziyoud, Aiman H.) of 16.11.2020

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Summarizing unformatted documents: non-technical

In this decision, the board of appeal made clear that a non-technical feature in a claim does not automatically inherit the technical character of the context in which it occurs.

Here are the practical takeaways from the decision T 0483/11 (Document summary/ARIZAN CORPORATION) of 13.10.2015 of Technical Board of Appeal 3.5.01:

Key takeaways

A feature does not automatically inherit the technical character of the context in which it occurs. The feature must, itself, make a contribution to the technical context or the technical aspects of the invention.

The invention

At the date of the invention, mobile data connections were slow and mobile devices had limited processing and display capabilities. But at the same time, electronic documents were large and contained “rich” content. The core of the invention was thus to create a smaller summary version for an electronic document.

The summary is generated by a server in response to a request from a mobile communication device and is transmitted to the mobile device. The user can use the summary to navigate the electronic document and request content corresponding to the summary entries from the server. This precludes the need to send the entire document to the mobile device, at least initially.

The server generates the summary by selecting content from the electronic document. It does this using one of three processes:

Fig. 3 of EP 1 573 562
Fig. 3 of EP 1 573 562
  • If the document has so-called “content structure”, e.g. a table of contents, this information is used as a summary (“structured document summarization process”).
  • If the document does not contain such information, any text formatting or paragraph formatting is analysed in order to find “section identifiers” (headers and titles) in the document which are used as summary entries (“unstructured document summarization process”).
  • If the document contains neither “predetermined content structure” nor text or paragraph formatting information, or if all the text is formatted identically, the process operates on the basis of differences in paragraph size: shorter paragraphs (those having few characters) are more likely to be section identifiers than longer paragraphs (“unformatted document summarization process”).

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step based on the argument that claim 1 essentially related to a computer-implementation of a non-technical method.

On the appeal stage, the Board took the view that the only difference between claim 1 and the closest prior art was the “unformatted document summarization process” for extracting summary information based on differences in paragraph size.

The patent applicant had argued that the claimed document summarization was technical, because it was part of a technical context, i.e. a mobile communication system. Secondly, the summarization was provided to overcome the technical limitations of such a system. The “unformatted document summarization process”, in particular, was technical for those same reasons. It allowed a larger class of documents to be summarized and used in the context of the mobile communication system.

The board acknowledged that the invention had technical character as a whole, but doubted that the document summarization process provided a technical contribution that would be relevant for inventive step under the COMVIK approach:

2.7 In the present case, the contribution of the invention does not lie in the use of document summarization in a mobile communication system. That is already in the prior art. The contribution lies rather in the algorithm for extracting summary information from the electronic document, more specifically in the manner in which section identifiers are assumed in a text that has no differences in formatting. In the Board’s view, this is not technical. It is a mental act, such as would be performed by a human when reading a text.

2.8 Put in the technical context of the mobile communication system, the unformatted document summarization has the consequence that a larger class of documents can be summarized. However, the Board does not consider this to be a technical effect. The Board does not share the appellant’s view that a feature automatically inherits the technical character of the context in which it occurs. The feature must, itself, make a contribution to the technical context, or the technical aspects of the invention.

Therefore, the board took the view that the “unformatted document summarization process” did not make a technical contribution over the prior art. The board further considered that the implementation of this functionality would have been straightforward, using routine programming methods. Thus, the board concluded that claim 1 did not involve an inventive step, and dismissed the appeal.

More information

You can read the whole decision here: T 0483/11 (Document summary/ARIZAN CORPORATION) of 13.10.2015

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Estimating the availability of a person despite inaccurate calendar information: non-technical

This decision is a good example of a software tool with very useful functions for the modern office worker, but which does not necessarily qualify as a patentable invention at the European Patent Office.

Here are the practical takeaways from the decision T 0434/13 (Generating availability data of a called party/MITEL) of 26.1.2017 of Technical Board of Appeal 3.5.03:

Key takeaways

Providing a more reliable estimate of availability in order to overcome the drawback that not all users provide accurate updated information in their calendars is not a technical problem.

The invention

This European patent application concerns context-aware call handling in communication systems.

According to the application, it is commonplace for users of telephone systems to be directed to voice mail when they attempt to reach a potential collaborator. The calling party can leave a message requesting to be called back, but there is no assurance that the calling party will be available when the called party makes the requested return call. The familiar game of “telephone tag” is created in this way.

But moreover, so the application, social science research has indicated that informal interaction is an essential element of workplace life to provide for both innovation and efficiency. To this end, the telecommunications industry has been developing presence and availability technology to provide for the necessary element of causal awareness. These allow users to share their current availability with potential collaborators. However, knowledge of current availability is not useful when the called party is not available and the parties need to communicate with each other.

The application therefore regards it as a key aspect of the invention to integrate availability indicators to decisions on call disposition by
call control. In particular, it proposes a method for improving the estimation as to the likely availability of a user to which a call may be made in the future from a calling party.

Fig. 8 of EP 2 071 816
Fig. 8 of EP 2 071 816

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step based on the argument that claim 1 essentially related to a computer-implementation of a non-technical method.

In its inventive-step assessment on the appeal stage, the board identified the following distinguishing features over the closest prior art:

The subject-matter of claim 1 therefore differs from the disclosure of D1 in that claim 1 includes the following features:

said estimating availability for said at least one future temporal block comprises a hardware or software confidence agent querying a calendar of at least one other user associated with said user to determine meetings in which said user may be involved,

estimating confidence of said queried calendars by querying an estimator that monitors actual meeting information of a user associated with said queried calendar,

comparing said actual meeting information with meeting information recorded in said queried calendar, determining the proportion of accurately recorded meeting information with respect to a total amount of meeting information recorded, and

giving preference to meetings associated with the queried calendar having the highest confidence when applying said availability rules.

Following the COMVIK approach, the board assessed whether these features produce any technical effect and thus contribute to the solution of a technical problem. The avid reader will probably have guessed the board’s answer:

In the board’s view, the main (non-technical) problem to be solved starting out from D1 is to provide a more reliable estimate of availability in order to overcome the drawback that not all users provide accurate updated information in their calendars. This problem is essentially solved by consulting calendar information (data entered by the user as well as “actual” meeting information) with regard to meetings of a user and at least one other user associated with the user, and giving preference to meeting information determined to have a higher likelihood of accuracy based on comparing actual meeting information with recorded calendar information. This concept is essentially non-technical (although this was disputed by the appellant, see below), since neither calendar data, nor “actual” meeting data, nor availability estimate data have any technical character, and the manipulation of the data to determine the estimate concerns essentially a mathematical method, which is also regarded as non-technical (cf. Article 52(2)(a) EPC).

The patent applicant had argued that providing improved availability data indeed resulted in technical effects, because improved availability data reduced the use of communication resources between a calling party and a called party and enhanced the call processing options available. As the improved availability assessment was responsible for these effects, all features of claim 1 contributed to inventive step.

But the board was not persuaded:

The board however considers that the presence of the wording “for a future communication from a calling party” makes no contribution to inventive step. In this respect, consider that a caller in a conventional manner wished to place a call to a called party. When deciding whether to place the call at a certain time, it is obvious that it would be possible to obtain information regarding the called party’s likely availability during a particular period of time, for example by consulting the person’s diary or calendar, as well as other calendars indicating meetings which the person is scheduled to attend. Determining a person’s availability in this way is essentially non-technical. The mere fact that the improved result might potentially be used to influence when to place a future conventional call to that person does not in itself give the method a technical character. It is further noted that the wording “for a future communication” does not even require in claim 1 that a future communication be made. Consequently, this hypothetical step does not meaningfully limit the claim.

Accordingly, the board considered the features in question to be non-technical features, so that they do not contribute to inventive step under the COMVIK approach. The board then went on to assess whether the claimed computer-implementation could involve non-obvious further technical considerations. The patent applicant had argued that the computer-implemented solution using a confidence agent and an estimator for monitoring actual meeting information went beyond merely carrying out non-technical steps on a computer. But the board did not agree:

The board however disagrees. In this respect, the board considers that the skilled person wishing to solve the problem of implementing the availability estimation (cf. point 1.5 above) would, without requiring inventive skill, provide the “normal” hardware and/or software entities necessary for (i) obtaining the required data from calendars (e.g. by querying on-line calendars), (ii) obtaining data concerning actual meeting information (e.g. by querying a store of such information), and (iii) estimating availability by comparing the data in the manner claimed. With regard to the features “confidence agent” and “estimator” in claim 1, the board considers that “confidence agent” is merely an arbitrary term for a software entity which carries out steps (i) to (iii), and the term “estimator”, while obscure, since this component does not appear to estimate anything, but merely “monitors” actual meeting information, is understood as a hardware and/or software entity programmed to be supplied with actual meeting information data, and which can be queried by the confidence agent. The board considers that it makes no difference to the assessment of inventive step whether the confidence agent itself “monitors” the actual meeting information data (see point (ii) above), or whether this task is performed by a separate hardware and/or software module which has to be queried by the confidence agent. The functional and/or physical separation of such programming tasks is a routine measure for the skilled person, as illustrated by D1, in which different entities are involved in collecting presence information (“presence server 114”), collecting calendar information (“calendar server 118a”), and analysing the information (“rules engine 112”).

The board therefore concluded that claim 1 did not involve an inventive step, and dismissed the appeal.

More information

You can read the whole decision here: T 0434/13 (Generating availability data of a called party/MITEL) of 26.1.2017

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Improving a mobile POS terminal in respect of the customers’ security against fraudulent use of their sensitive information: technical

This decision is interesting in that it uses the concept of the “notional business person”, as it was introduced in T 1463/11, to assess whether a given difference over the prior art achieves a technical effect or not.

Here are the practical takeaways from the decision T 1749/14 (MOBILE PERSONAL POINT-OF-SALE TERMINAL/MAXIM) of 3.4.2020 of Technical Board of Appeal 3.5.01:

Key takeaways

Improving a mobile POS terminal in respect of the customers’ security against fraudulent use of their sensitive information: technical

The invention

This European patent application concerns the field of mobile point-of-sale (POS) terminals for carrying out credit card transactions.

Conventionally, the merchant possesses such mobile POS terminals and the customer has to provide identification credentials (e.g. an account number and PIN) to this merchant’s unit. The invention tries to avoid the customer’s sensitive information becoming known if the merchant’s device is tampered with. The basic idea is to allow a transaction to be carried out without the customer having to present account information and the PIN to the merchant.

Fig. 2 of EP 2 335 203
Fig. 2 of EP 2 335 203

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step based on the argument that no technical problem was solved by the differences over D1, which were only cognitive business aspects providing no technical contribution.

On appeal, the board started its inventive-step assessment from the closest prior art D1, which discloses a mobile POS terminal which consists of a cellular phone and docking module combination. This POS terminal is in the possession of and under control of the merchant. No further equipment is required to carry out a POS transaction.

According to the board, the transaction with the mobile POS terminal disclosed in D1 involves the security problem of the customer having to provide his PIN and account number to the merchant’s device, which then encrypts this information and passes it on to the Financial Transaction Verification Entity (FTVE). The invention of the patent application seeks to overcome this by directly communicating the customer’s sensitive information to the FTVE. To this end, the POS terminal is divided into a merchant part and a customer part consisting of a docking station or sleeve and a cellular phone.

More precisely, the board identified the following differences of claim 1 over D1:

The concept of the invention differs from the teaching of D1 in that dedicated encryption keys are assigned to the POS attachment portion with the customer’s cellular phone being linked by the phone’s serial number thereby personalising the CMPPT. The Board agrees with the appellant that this causes the security related effect that only this personalised cellular phone can be used for a transaction, in contrast to D1 where any cellular phone can be used.

A further difference is that customer account information is stored in the point-of-sale attachment portion, which receives merchant account information. Customer and merchant account information is sent from the CMPPT to the FTVE when initiating a transaction, i.e. the customer account information is sent directly from the cellular phone portion of the CMPPT to the FTVE. This has the effect that customer account information is not accessible to the merchant’s POS terminal. In contrast to the contested decision (see point 1 of the decision; page 3, first paragraph), D1 does not disclose the latter difference.

The board then assessed whether these differences provided a contribution to the technical character of the invention, using the notional business person as a control consideration:

The notional business person, as introduced in T 1463/11 (Universal merchant platform / CardinalCommerce), knows all about the business related requirements specification and knows about the fact that such business related concepts can be implemented on a computer system (stand-alone or networked, including the Internet). What the notional business person does not know, however, is how exactly it can be implemented on a computer system. This is in the sphere of the technical expert and subject to the assessment of inventive step (see T 1082/13).

In the Board’s view, in the present case the notional business person might come up with the abstract idea of avoiding the customer having to provide PIN and account information to the merchant. Even when considering this to be an abstract business concept for carrying out POS transactions, it cannot however be convincingly argued that it would be sufficient to implement this idea on a standard general purpose mobile POS terminal infrastructure as known from D1 with standard programming skills. It requires a new infrastructure, new devices and a new protocol involving technical considerations linked to modified devices and their capabilities as well as security relevant modifications of the transfer of sensitive information using new possibilities achieved by the modifications to the mobile POS infrastructure.

This goes beyond what the notional business person knows, but rather concerns technical implementation details (how to implement) which are more than a straight-forward 1:1 programming of an abstract business idea. Just as T 1463/11 (supra) considered the security relevance of centralising authentication services in view of avoiding maintenance of software plug-ins in merchant computers contributed to the technical character, the Board considers the security relevance of the modifications according to point 4 above contribute to the technical character of the present invention.

Hence, the board considered the distinguishing features to be technical ones and formulates the objective technical problem as follows:

The Board therefore considers the objective technical problem underlying the differences outlined in point 4 above to be to improve the mobile POS terminal known from D1 in respect of the customers security against fraudulent use of their sensitive information.

The board took the view that a further search for prior art was necessary to assess inventive step in a meaningful manner. Therefore, the decision under appeal was set aside and the case was remitted to the department of first instance for further prosecution.

More information

You can read the whole decision here: T 1749/14 (MOBILE PERSONAL POINT-OF-SALE TERMINAL/MAXIM) of 3.4.2020

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