Author Archive

Ensuring data integrity, facilitating centralized control of logistics plants and improving data exchange to other logistics plants: non-technical

This decision concerns a data exchange system in the area of logistics. However, none of the effects produced by said system were considered technical by the EPO. Here are the practical takeaways from the decision T 2522/16 () of March 25, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

Pure business-related aspects cannot establish technicality.

The invention

The subject-matter of the European patent application underlying the present decision was summarized by the Board in charge as follows:

2. The application

The application is directed at a virtual manufacturing network (VMN). The manufacturing processes of multiple geographically separated logistics plants are to be controlled and monitored (paragraph [30] of the published application), for instance in view of stringent regulation associated with pharmaceutical and processed food products (paragraphs [1] and [2] of the published application). For example, the application aims at improving and identifying alternatives to the cumbersome manual processes employed to compile batch records during production (paragraph [3] of the published application).

The ultimate aim of the invention is an impro­ved business administration process, in par­ticular involving rules and regulations for pharmaceu­tical products (see further paragraphs [4] to [6] of the published application).

For this purpose, information selected according to predefined criteria is kept consistent across different logistics plants. Data selected according to predefined criteria is copied, in a distributed or networked computer system, between local computers and a central computer, these computers being connected to each other through interfaces.

Fig. 2 of EP 2 199 960 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request - labeling f1, f2 ... added by the Board)

Is it patentable?

Against the rejection of the first instance examining division, the appellant argued as follows:

Care should be taken when distinguishing between non-technical and technical features according to the Comvik approach as set out in T 0641/00, in line with the Case Law of the Boards of Appeal.

For instance, for a feature to be technical, it was sufficient that it was based on technical considerations, as discussed in T 0769/92. Although this deci­sion dated from before the Comvik decision, it had not been invalidated in the Enlarged Board of Appeal’s opinion G 03/08. Instead, it had been endorsed by the Enlarged Board of Appeal in its recent decision G 01/19 under point 126 and thus still applied.

An app­lication to the present case would result in recognizing that, while the content of the rules defined in the claims reflected business needs, their implementation by means of the data structure de­fi­ned in feature f3, including technical aspects like a “copy flag”, was based on technical considera­tions.

In more detail, the appellant was of the opinion that the the subject-matter of claim 1 provides a technical effect and solves a technical problem:

… Instead, the subject-matter of claim 1 of the main request, directed to a data exchange system and further defined by features f1 to f6, achieved the effects of

i) ensuring data integrity in the sense of data consistency across different locations in a networked information system as defined in features f1 and f2 in real time,

ii) facilitating centralized control of logistics plants by the data structure and its functionalities defined in feature f3 and illustrated in Table 7 and paragraphs [75] and [76] of the published application,

iii) improving data exchange to other logistics plants by mirroring and converting relevant data according to features f4 and f5.

Effects i) to iii) were technical and the corresponding features of claim 1 of the main request had thus to be taken into account for assessing inventive step.

In view of technical effects i), ii) and iii) the objective technical problem to be solved by the skilled person starting from a networked information system could then be formulated as

how to enable an efficient data exchange with improved data integrity within a heterogeneous networked information system.

However, the Board in charge takes a different position and considered none of these effects technical:

3.2.1 Effect i), data consistency

A process for achieving consistency of manufacturing information across different locations does per se not solve a technical problem, but merely fulfills a business administration aim.

3.3 Effect ii), centralized control

The centralized control of plants mentioned in the application (see paragraph [30]) does not relate to any technical industrial control system at produc­tion process level in the form of, e. g., a super­visory control and data acquisition (SCADA) system or a distributed control system (DCS). …

Such a centralized specification is, however, a ne­cessa­ry part of the administrative process to achieve the business administration aim of keeping certain manufacturing infor­mation consistent.

3.4 Effect iii), efficient data exchange by mirroring and converting relevant data

The “data conversion specifier” referred to in feature f5 relates to specifying which data are to be converted upon synchronization, or, in the words of the description, when being “copied” (see Table 8). The conversion may be as basic as leaving the data unchanged or transforming it to a blank data entry in accordance with the administrative needs. The “data conversion specifier” has therefore a similar functionality as the “material master views definition” and hence represents, like the latter, pure business matter.

Against this background, the Board in charge concluded as follows:

3.5 Conclusion concerning technical effects / closest state of the art

In line with the Case Law of the Boards of Appeal mentioned by the appellant, it follows from the above that the technical aspects of effects i) to iii) referred to by the appellant do not go beyond commonly known effects arising whenever a conventional networked information system is used to receive, store, process and send data. The Board is not aware of any other technical effects provided by the features of claim 1 of the main request, either.

A conventional networked information systems as generally known at the filing date of the present application may therefore be regarded as representing the closest state of the art, in line with point 2.6 of the contested decision.

3.6 Inventive step

The subject-matter of claim 1 of the main request differs from such a conventional networked information system only by aspects relating to an administrative information exchange process which do not provide a technical effect, as set out by the Examining Division (see points 2.3.1 to 2.3.10 of the Reasons).

Since the distinguishing aspects represent pure business matter, they can be included in a non-technical requirement specification given to the technically skilled person in line with what was set out in T 1463/11 (see point 13 of the Reasons).

Thus, it is not appropriate to formulate the objective technical problem as suggested by the appellant. Instead, the objective technical problem can be formulated as how to implement the administrative information exchange process as defined by the Examining Division in points 2.3.1 to 2.3.10 of the Reasons of the contested decision on a generally known conventional networked information system.

Such an implementation would have been a straightfor­ward task for the technically skilled person.

Hence, the Board arrived at the result that the subject-matter as claimed lacks inventive step and thus dismissed the appeal.

More information

You can read the whole decision here: T 2522/16 () of March 25, 2021

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Performing pre-operating assessment more efficiently and intuitively: non-technical

This decision concerns conducting pre-operating assessments more efficiently and intuitively. However, the EPO considered this non-technical. Here are the practical takeaways from the decision T 2520/16 () of 23.3.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

Features aimed exclusively at improvements regarding the way information is perceived or processed by the human mind are generally regarded as non-technical.

Features defining presentation of information may be considered to produce a technical effect if they credibly assist the user in performing a technical task by means of a continued and/or guided human-machine interaction process.

The invention

The subject-matter of the European patent application underlying the present decision was summarized by the Board in charge as follows:

2. The claimed invention

The claimed invention relates to a procedure and a system for performing pre-operating assessment of one or more anatomical structures.

Anatomical structures (e. g. a tumour) within organs (e. g. a liver) are rendered as 3D images in a 3D space and displayed at an output interface (e. g. a screen). One or more closed 3D volumes having a size and shape that are deformable represent(s) (a) safety margin indicator(s). These volumes are adjustable in order to conform to the shape and size of anatomical structures.

The user manipulates on the screen a safety margin indicator deforming it with respect to the anatomical structure it surrounds/encloses. The system provides immediate feedback to the user by re-rendering and displaying the deformed safety margin indicator immediately after the user’s manipulation.

For example, the user (a surgeon) deforms the safety margin indicator displayed around a tumour within an organ so that they can visualise the part of the organ that has to be removed in the operation. The pre-operating assessment is carried out by visualising several possible deformations of the safety margin indicator and assessing which approach would be best for the subsequent operation.

Fig. 1 of WO 2010/132606 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

According to the Technical Board of Appeal 3.4.03, the subject-matter as claimed would only differ in a minor aspect from the closest prior art document D1:

3.1.2 Summarising, D1 discloses a method and a system for rendering 3D and 2D images containing multiple volumes. The system allows a user to manipulate the volumes in the displayed images and provides real-time updating of the modified images (see for example paragraphs [0032] and [0038]). The description of the related art can be considered a hint that the system may be used in medical applications without any further details.

3.2 The claimed invention differs from D1 only in that the displayed volumes represent anatomical structures, organs and safety margin indicators. In other words, in the information the images convey to the user, i. e. their cognitive content (“what” is displayed).

The appellant did not agree to this assessment and argued as follows:

3.3.1 According to the appellant, the claimed invention comprised the displaying of 3D volumes representing anatomical structures. Making reference to paragraphs [0038] and [0039] as well as Figures 2a to 2c of the application, the appellant explained that the safety margin indicator was a closed 3D volume having shape and size that were adjustable to conform to the shape and size of anatomical structures. Based on input from the user, the safety margin indicator was deformed in its shape and/or size with respect to the anatomical structure (see also appellant’s letter of 23 February 2021, pages 2 and 3).

3.3.2 In contrast thereto, the system of D1 displayed 3D volumes as stacks of cross sectional 2D images. The user’s manipulation of those volumes consisted in moving section planes through the 3D volumes and displaying the corresponding cross sections (see appellant’s letter of 23 February 2021, page 4).

3.3.3 These differences provided a technical effect in that they enabled the user to perform pre-operating assessment more efficiently and intuitively.

However, the Board in charge was not persuaded by these arguments. According to the Board, pre-operating assessment would be a cognitive process and therefore not a technical activity:

3.4.1 First of all, the board does not consider the pre-operating assessment in the context of the present application to be a technical activity, but rather a cognitive process that takes place in the mind of the user (a surgeon in this case).

Furthermore, the Board outlined that features that only aim at improving the way how information is perceived has to be regarded as non-technical. Only in specific cases can such features contribute to the technical character of an invention:

3.4.2 Second, according to established case law and practice, features aimed exclusively at improvements regarding the way information is perceived or processed by the human mind are generally regarded as non-technical.

Such features defining presentation of information may be considered to produce a technical effect if they credibly assist the user in performing a technical task by means of a continued and/or guided human-machine interaction process. Such a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the features (see Case Law of the Boards of Appeal of the EPO, 9th Edition, July 2019, I.D.9.1.6 a)).

In the present case, however, the task performed by the user would be non-technical:

… the task performed by the user (pre-operating assessment) is not technical. Moreover, there is no indication of a continued and/or guided human-machine interaction process that might guide the user in performing this task. The user (surgeon) is provided with information to which they may react by, for example, changing their mind about the subsequent operation.

Since the distinguishing feature over D1 could not provide any technical contribution, the claimed subject-matter does not involve any inventive step within the meaning of Article 56 EPC. Hence, the appeal was dismissed.

More information

You can read the whole decision here: T 2520/16 () of 23.3.2021

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Translation of a natural language into an abstract language: non-technical

This decision concerns a European patent application relating to the translation of a human language into an abstract formal language which was considered non-technical by the EPO’s Board of Appeal in charge. Here are the practical takeaways from the decision T 2825/19 (Natural language to machine language translator/RAVENFLOW) of 19.3.2021 of the Technical Board of Appeal 3.5.07:

Key takeaways

All computer programs have technical effects, since when different programs are executed they cause different electrical currents to circulate in the computer they run on. However such technical effects are not sufficient to confer “technical character” on the programs; they must cause further technical effects.

The invention

The application underlying the present decision relates to a system and method for translating a natural (human) language into a formal language. The purpose of the formal language is to serve as a template for further translations into a variety of machine languages which are executable in specific operational environments (WO 02/103555 A2, page 1, first paragraph).

More specifically, the invention translates natural language input into internal formal language expressions and then further translates these expressions into executable formal expressions in a formal language such as SQL (structured query language) or SMTPL (the language of the mail protocol SMTP) (WO 02/103555 A2, page 34, last paragraph).

Fig. 2 of WO 02/103555 A2

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

In the first instance, the application underlying the present decision was refused due to lack of inventive step. According to the Examining Division, claim 1 comprises technical and non-technical features. However, in view of the cited prior art, the only identifiable technical contribution consisted in the claimed implementation of the non-technical features in the system disclosed in in cited prior art. More specifically, the Examining Division argued that the translation of linguistic considerations by means of a computer involves technical considerations, but no “further technical considerations” as required by the EPO’s case law:

3. (…) According to the examining division (see communication of 13 November 2018, point 4), referring to decisions T 598/14 and T 1177/97, the translation of linguistic considerations into a mathematical model with the aim of enabling the linguistic analysis to be done automatically by a computer could be seen as involving, at least implicitly, technical considerations. However, according to opinion G 3/08 (OJ EPO 2011, 10), point 13.5 of the Reasons, this was not enough as the technical character would have to be established on the basis that those considerations constituted “further technical considerations”. Moreover, machine-executable instructions per se were not technical as computer programs as such were explicitly excluded from patentability (Article 52(2)(c) EPC).

Against this assessment, the Appellant inter alia argued as follows:

4. (…) Furthermore, the appellant argued that linguistics was not concerned with translating expressions in an internal formal language into equivalent formal expressions executable in an external operational environment. Rather, steps b) to r) of the claimed method defined a technically advantageous method of translating natural language to executable formal expressions via an abstract formal language. This abstract formal language was explicitly designed to serve as a universal template for further translations into a comprehensive variety of machine languages which were executable in specific operational environments. This was evidence that the steps involved further technical considerations. The method of claim 5 did not use the computer merely as a tool for implementation but focused on improving the computer functionality itself.

However, the Board in charge did not follow the Appellant’s arguments:

5.3.6 (…) By contrast, the board sees no support for the appellant’s view that the concept “further technical considerations” should be interpreted with a broader meaning that would also cover considerations aiming to solve problems “merely” relating to programming such as maintainability, re-usability and understandability of program code, or, in this case, the use of a universal template for translating natural language into executable expressions in external operational environments. Such a broader view of the concept “further technical considerations” appears to be problematic with regard to the imperative to ensure legal certainty and judicial predictability requiring a uniform application of the law (see opinion G 3/08, Reasons 7.2.3) since no criteria are apparent which could then be used to establish a clear border between “technical” and “non-technical” aspects of computer programs.

5.3.7 In view of the above, the board agrees with the examining division that steps b) to p) do not contribute to the technical character of the claimed invention as these steps do not involve technical considerations going beyond “merely” finding an abstract computer algorithm to carry out the translation from natural language text into an internal formal language.

As a result, the appeal was dismissed.

More information

You can read the whole decision here: T 2825/19 (Natural language to machine language translator/RAVENFLOW) of 19.3.2021

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Method of providing a user interface for controlling a system: Technical

This decision concerns a European patent application for providing a user interface for controlling a system based to the body movement of the user. This application is one of the few applications relating to user interface that have been granted. Here is the practical takeaways from the decision T 3131/19 (Body movement dependent user interface/PHILIPS) of 7.4.2021 of the Technical Board of Appeal 3.5.05:

Key takeaways

Providing an improved and more flexible user input interface for controlling a system is a technical problem.

The invention

The European patent application concerns a method and a system for providing a user interface for controlling the system relative to the responsiveness of the user action. In particular, the invention provides a sensor for observing a body and a perceptible user interface. Based on the rate of displacement of the body, the underlying system is controlled.

In a simple example, a coffee maker has a mechanical switch and a sensor capable of determining the displacement rate of the user’s hand approaching the switch. Based on the rate of approach, the functionality of the switch changes. For instance, on the one hand, if the rate is higher (rapid action to the switch), the controller changes the switch functionality to a first action (stop pouring coffee). On the other hand, if the rate is slower (hand slowly brought to the switch), the switch functionality is converted to an ON/OFF function of the coffee maker.

Therefore, the rate of displacement determines the user interface of the functionality of the system.

Fig. 2 of WO 2009/069050 A1

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 novelty. The cited prior art document disclosed a video game where the user could control the character by moving the body.

On appeal, the Board agreed with the appellant that the cited document only disclosed using the displacement of the body to interact with the user interface (i.e., the character on-screen) and not to provide a part of the user interface associated with the functionality of controlling the system. Therefore, the claim was considered novel.

When deciding whether the distinguishing feature was technical, the Board provided the following reasoning:

The technical effect of the essential differences detailed above between the subject-matter of claim 1 and the disclosure of D1 is that a part of the user interface provides different functionalities for controlling the system depending on the rate of displacement of a user’s body part towards the user interface.

The objective technical problem can thus be formulated, as proposed by the appellant, as how to provide an improved and more flexible user input interface for controlling a system.

The Board then concluded that the subject-matter of the claim is inventive: None of the cited documents aim at improving a user interface. Moreover, none of the cited documents discloses the distinguishing feature.

More information

You can read the whole decision here: T 3131/19 (Body movement dependent user interface/PHILIPS) of 7.4.2021

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Auto-correction of text input: non-technical

This decision concerns the field of user interface design and the question, to which extent text-correction is a technical task. Here are the practical takeaways from the decision T 2372/17 (Multi-word autocorrection/APPLE) of 25.2.2021 of Technical Board of Appeal 3.5.07:

Key takeaways

Text correction as such is not technical. Text auto-correction could contribute to a technical effect if it were used in combination with other user-computer interaction techniques for facilitating the user’s entering of text in a computer.

The invention

This European patent application concerns multi-word auto-correction which occurs when a user enters text with a touch-sensitive keyboard. The core idea was basically that a selection of an initial corrected word is revisited if a subsequently typed word indicates that it would be more appropriate to select a different correction for the initial word instead.

For example, the system may select an initial corrected word “new” based on a user’s input of “nes”. However, if the subsequently typed word is “york”, then the system can revisit the selection of “new” and instead correct the initial word to “New” and select a corrected word “York” to replace the typed word “york”.

Fig. 1 of EP 2 859 470
Fig. 1 of EP 2 859 470

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 based on lack of inventive step over the prior art on record, wherein some features were considered to relate to non-technical user requirements.

On the appeal stage, the board of appeal assessed whether teh auto-correction as claimed contributed to the technical character of the invention:

[…], linguistic aspects and presentation of information as such are not patentable pursuant to Article 52(2) and (3) EPC. Such features of a graphical user interface can be considered to contribute to a technical effect if they credibly assist the user in performing a technical task by means of a continued and/or guided human-machine interaction process (see decisions T 336/14 of 2 September 2015, Reasons 1.2.4, and T 1802/13 of 10 November 2016, Reasons 2.1.5 to 2.1.7).

However, the claim does not detail any interaction between the user and the computer in relation to the auto-correction that is taking place, and there is nothing to suggest that the user is taking into account what is being displayed. It is therefore doubtful that there is any continued and/or guided such interaction.

With regard to the use of touch points in the claimed method, the board notes that the first touch points are transformed into characters in advance of the correction and that claim 1 does not define any specific way of transforming any of the touch points to input characters or using the touch points to influence the text auto-correction.

In view of this, the board doubts that the text auto-correction in the context of the claimed method contributes to a technical effect.

Therefore, the board held that no technical effect can be established by the distinguishing features, which concern presentation of information. As a result, the main request was found to lack an inventive step. Since none of the auxiliary requests was found to be allowable either, the appeal was dismissed in the end.

More information

You can read the whole decision here: T 2372/17 (Multi-word autocorrection/APPLE) of 25.2.2021

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Improving billing code accuracy with machine learning: non-technical

There are few decision yet which specifically address the question to what extent machine-learning aspects make a technical contribution. This decision explores whether using machine learning for improving the accuracy of medical billing codes makes a technical contribution.

Here are the practical takeaways from the decision T 0755/18 (Semi-automatic answering/3M INNOVATIVE PROPERTIES) of 11.12.2020 of Technical Board of Appeal 3.5.07:

Key takeaways

If neither the output of a machine-learning computer program nor the output’s accuracy contribute to a technical effect, an improvement of the machine achieved automatically through supervised learning to generate a more accurate output is not in itself a technical effect (Catchword)

A billing code is non-technical administrative data. Generating a billing code is a cognitive task. The process of generating a billing code on the basis of documents is thus a non-technical administrative task, which, as such, is not patentable.

The invention

This European patent application concerns billing codes for medical billing. Such billing codes may relate to a hospital stay of a patient based on a collection of the documents containing information about the medical procedures that were performed on the patient during the stay and other billable activities performed by hospital staff. This set of documents may be viewed as a corpus of evidence for the billing codes that need to be generated and provided to an insurer for reimbursement.

The patent application starts from known computer-based support systems that guide human coders through the process of generating billing codes. Such systems typically include “concept extraction components” (e.g. to extract concepts like “allergy” or “prescription” from a medical report) and an “inference engine” that generates appropriate billing codes.

The invention sets out to improve the accuracy of such automatically generated billing codes.

To this end, the invention allows a human operator to provide input as to whether the generated billing codes are accurate (e.g. a verification status). The system may automatically interpret the feedback, and the reasoning process may be inverted in a probabilistic way to assign blame and/or praise for an incorrectly/correctly generated billing code to the constituent logic clauses which led to the generation of the billing code.

Fig. 4 of EP2619661
Fig. 4 of EP2619661

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 based on lack of inventive step over a standard general purpose computer.

On the appeal stage, the board of appeal assessed which of the features of the invention actually makes a technical contribution, and took the view:

A billing code is non-technical administrative data which may take the form of a textual representation, for instance “Unspecified diabetes” (see paragraph [0050] of the international publication). Generating a billing code (see also point 1. above) is a cognitive task (paragraphs [0002] and [0015]). The process of generating a billing code on the basis of documents is thus a non-technical administrative task, which, as such, is not patentable pursuant to Article 52(2) and (3) EPC.

The appellant had argued that simply because a certain feature offers a solution to an administrative, economic or business problem, it did not in and of itself prohibit the same feature from simultaneously solving a technical problem for which an applicant was entitled to seek protection. The board agreed that the presence of non-technical features in the claim does not mean that the claimed subject-matter is not patentable and that features which are non-technical when taken in isolation but which interact with technical features of the invention to solve a technical problem should be taken into account in assessing inventive step.

Moreover, the appellant argued that the invention used machine-learning techniques to improve the accuracy of the machine output. According to the appellant, the invention was technical because it improved the system so that it would generate more accurate billing codes in the future.

The board did not follow this argument:

In the board’s opinion, if neither the output of a learning-machine computer program nor the machine output’s accuracy contributes to a technical effect, an improvement of the machine achieved automatically through supervised learning for producing a more accurate output is not in itself a technical effect. In this case, the learning machine’s output is a billing code, which is non-technical administrative data. The accuracy of the billing code refers to “administrative accuracy” regarding, for example, whether the billing code is consistent with information represented by a spoken audio stream or a draft transcript (paragraph [0051]) or is “justified by the given corpus of documents, considering applicable rules and regulations” (paragraph [0002]). Therefore, improving the learning machine to generate more accurate billing codes or, equivalently, improving the accuracy of the billing codes generated by the system, is as such not a technical effect.

Also the further arguments made by the appellant were not successful, and the main request was found to lack an inventive step. In addition, since none of the auxiliary requests was found to be allowable either, the appeal was dismissed in the end.

More information

You can read the whole decision here: T 0755/18 (Semi-automatic answering/3M INNOVATIVE PROPERTIES) of 11.12.2020

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G1/19 first reactions w/ Rudolf Teschemacher and many more

Last week, the Enlarged Board of Appeal finally published its long-awaited decision G1/19 about the patentability of computer simulations. Does it revolutionize the patentability of computer simulations and patents for software in general, as some had hoped? Or is it rather a controlled evolution of the EPO’s framework for computer-implemented inventions?

Server-based fonts to solve licensing issues: non-technical

This decision is interesting in that the distinguishing feature was found not to provide a technical contribution mainly because of the reasons for using the feature disclosed in the application. Here are the practical takeaways from the decision T 1865/17 (Generating two-dimensional visual objects/GMC SOFTWARE) of 4.12.2020 of Technical Board of Appeal 3.5.07:

Key takeaways

If the reasons for not supporting a font in a terminal are licensing issues, i.e. non-technical commercial reasons, the aim to overcome such licensing issues may be added as a constraint to the objective technical problem.

The invention

This European patent application concerns a method for generating two-dimensional visual objects, e.g. graphical objects or characters.

According to the background described in the application, many companies often design their own fonts to ensure their visual appearance is consistent and uniform. These fonts are typically protected under intellectual property laws and may only be used by a third party with explicit permission or licence from the proprietor. However, it is not practical to provide communication terminals or browsers with permissions, or licences to use the company’s proprietary fonts or other visual objects. Nor is it desirable to store all these fonts on mobile communication terminals.

The general idea of the invention is that, when a user types a character sequence, it is initially displayed with a locally available font. After a certain duration of time, the display is refreshed using a second, enhanced visual representation (e.g. based on a server font) and the cursor is positioned to allow the user to continue typing:

Fig. 6 of EP 2 367 118
Fig. 6 of EP 2 367 118

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 based on lack of inventive step.

On the appeal stage, the board of appeal  started its inventive-step assessment based on document D1. D1 discloses the handling of large character sets in devices with memories too small to store the complete character set. When a character not stored in the device is required, a placeholder character is displayed instead, and the missing character is requested from a server where the complete character set is stored. Upon receipt of the missing character from the server, the displayed placeholder character is replaced with the correct character.

The invention thus differed from the closest prior art in that:

  • F1: the first visual representation has a one-to-one correspondence to the data entry
  • F2: positioning a cursor, based on the character metrics data associated with the second visual representation of the characters, to a position that enables continuation of data entry by the user

The applicant essentially argued that features F1 and F2 synergistically yielded the technical effect of ensuring immediate readability during continuous, uninterrupted data entry and thus supported a continuous human-machine interaction within the meaning of T 336/14 of 2 September 2015. Features F1 and F2 ensured that the readability was immediate and uninterrupted, respectively.

However, the board did not see any synergistic effect:

The board does not recognise the alleged synergistic effect of distinguishing features F1 and F2. Rather, the board agrees with the examining division that, when compared to the unreadable placeholders used in the method of document D1, feature F1 has the effect of an immediate readability. The board also agrees with the examining division that the positioning of the cursor according to feature F2 has the effect of enabling continued data entry after overwriting the first visual representation with the second. The effect of feature F2 is independent of the effect of feature F1, as the need to position the cursor after overwriting the first visual representation with the second is not dependent on displaying, as first visual representation, characters (in a substitute font) or placeholders.

Concerning feature F1, the board concurred with the examining division. Since D1 disclosed that placeholders for unavailable characters is unsatisfactory, the skilled person would prefer to use characters of a locally available font over unreadable placeholders, even if this font is not the desired font.

Moreover, the board also took the motivation for using a local font into account, and found that the motivation was rather non-technical:

In this context, the board observes that according to the description, page 4, lines 3 to 5, the reasons for not supporting a font in the terminal may be licensing issues, i.e. non-technical commercial reasons. The aim to overcome such licensing issues may thus be added as a constraint to the objective technical problem (see decision T 641/00, Two identities/COMVIK, OJ EPO 2003, 352), and the appellant agreed. In view of this non-technical motivation to avoid licensing issues, the skilled person would have replaced the placeholders as disclosed in document D1 with characters in a substitute font available locally when a character could not be rendered in a desired font by the communication terminal. Hence, the board is not convinced by the appellant’s argument that the skilled person starting from document D1 had no motivation to search for a solution different from using unreadable placeholders.

Also the second distinguishing feature F2 did not rescue the appellant’s case:

Regarding feature F2, the board also agrees with the examining division that the skilled person carrying out the method of document D1 was directly confronted with the problem of how to move the cursor to an appropriate display position after replacing the placeholder characters, since users would find it inconvenient to manually position the cursor after the placeholder characters were replaced with the characters in the desired font. Since any cursor positioning in a displayed text needs to be based on character metrics, the skilled person would obviously have used the character metrics, which were received from the server when downloading font information, for determining the correct position.

Furthermore, a correct positioning of the cursor was standard practice and notoriously known at the priority date. In particular, in the context of continuous text data entry, a correct positioning of a cursor implied (and still does) that the cursor is positioned behind the visual representation of the character sequence already entered in a way supporting continued entry of a sequence of characters forming text. Consequently, the skilled person would have implemented a correct positioning of a cursor without exercising inventive skill.

Therefore, the main request was found to lack an inventive step. Also the other requests did not succeed, so that the appeal was dismissed in the end.

More information

You can read the whole decision here: T 1865/17 (Generating two-dimensional visual objects/GMC SOFTWARE) of 4.12.2020

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Novelty w/ Patrick Heckeler

Of course, an invention needs to be “novel” to be patentable. But does any difference over the prior art do the trick? Or does there have to be a technically relevant difference? In this podcast, Bastian Best sat down with Patrick Heckeler to discuss a recent EPO decision involving that question.

Registering at an interface to receive relevant data for performing a task: non-technical

This case may be interesting for people involved in transportation and logistics business, specifically in the aviation sector. The European Patent Office considered registering (e.g. by a pilot) at an interface to receive relevant data for performing a task non-technical. Here are the practical takeaways from the decision T 2316/16 () of 12.2.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The commercial success of an invention does not allow any conclusions to be drawn about its technical character.

While non-technical features cannot contribute to inventive step, they may however legitimately form part of the problem to be solved by claimed subject-matter.

Procedural aspect: Declaring non-attendance at oral proceedings is considered as equivalent to a withdrawal of the request for oral proceedings.

The invention

The Board in charge summarized the subject-matter of the European patent application underlying the present decision as follows:

3. The invention

The invention relates to a method for selecting relevant information from a database for a user active in the transport sector. In particular, the invention finds its use in the aviation sector, more in particular, the invention relates to the selection of information which, for a pilot, where the latter is performing a task, is relevant at that moment, see the application, page 1, lines 4 to 8.

In the transport sector, in particular the aviation sector, obtaining accurate data such as weather information, vehicle information, or environmental information, is crucial for being able to correctly perform a task. This applies to, for example, “operators of the vehicle, who take a vehicle from point A to point B, as well as to the logisticians, who create plannings, as well as to maintenance personnel, who maintain vehicles”, see the application, page 1, lines 11 to 16.

According to the claimed method, transport activity related data is supplied to an interface of a predetermined user (e. g. a pilot) who is to perform a given task (e. g. a flight from A to B at a given time). The method and the system according to the invention are applicable by means of portable interfaces, such as for example those on mobile terminals, such as tablet computers, smart phones, laptops, etc., or by means of wired interfaces that are provided in the vehicle in a suitable position, such as for example a touch screen in the cockpit of an aircraft, see the application, page 2, lines 16 to 20.

The transport activity related data are stored in a database, wherein the plurality of data comprises different data types which are periodically loaded with different frequencies and which have a different validity period. Each of the data has at least four parameters attributed thereto: a first parameter contains one or more vehicle identifier means, a second parameter specifies at least one user-related qualification, a third parameter defines an area and a fourth parameter defines a time period.

After registering at the interface and identifying the vehicle (e. g. the aircraft to be used), a predetermined user (e. g. a pilot) is provided with the relevant data for performing the task (a flight from A to B at a given time). In case of a pilot, transport activity related data could relate to weather, flight planning, navigation charts, vehicle operation, vehicle load, etc.

 

Fig. 2A WO 2012/155218 A1

Here is how the invention was defined in claim 1 according to the main request:

  • Claim 1 (main request)

Is it patentable?

The first instance examining division rejected the present application due to lack of inventive step. The Board in charge arrives at the same conclusion and states that the subject-matter of claim 1 is a combination of technical and non-technical features. However, out of the plurality of features of claim 1, only three features of claim 1 would belong to the first group of technical features:

4.1 For the Board, the technical features according to claim 1 are the following:

– an interface (of a predetermined user) with means for running a program (e. g. a processor)

– a central information storage system having means for comprising a database (e. g. a memory device), means for storing a plurality of data

– a communication link for providing communication between the interface and the central information storage system.

To convince the Board in charge of the technical character of the remaining features of claim 1, the appellant filed three annexes and argued that (1) a similar case was considered technical by the German Federal Court of Justice (“Bundesgerichtshof”), that (2) a product that makes use of the claimed subject-matter is commercially successful, and that (3) that the claimed subject-matter provides a solution to minimize the risk of human errors by making sure that the user receives only the relevant and up to date information.

4.7.3 The appellant submitted Annex 1 related to the European patent EP 1 474 927 to provide evidence that, in that case, the German Bundesgerichtshof came to the conclusion that the enhanced perceptibility of information by a specific way of using an image stream and two subset image streams could be regarded as a technical effect. The appellant argued that, for the present invention as defined in claim 1, a user also could more quickly and efficiently grasp information to perform her/his task, see statement of grounds of appeal, points 4. to 7.

4.7.4 The appellant filed Annex 2 to show a commercial success of the present application and for supporting an inventive step. It cited slides 22 to 25, 14 to 21 and its client’s testimonials as evidence that the features shown in slides 14 to 25 contributed to the commercial success, see statement of grounds of appeal, points 9 to 11.

4.7.5 The appellant filed Annex 3 to show a long-felt need and cited the conclusions on pages 81 and 82. It argued that, whilst the invention did not provide a solution to completely solve the risk of human error, it minimized this risk by making sure that the user had only the relevant and up to date information. It added that the invention provided “a solution which can ensure that necessary data to be able to detect human errors or identity risks, for example for take-off performance parameters, is available on the user interface“, see statement of grounds of appeal, point 12.

However, the Board in charge did not follow the appellant’s arguments and commented on the filed annexes as follows:

Annex 1:

4.8.3 ad 4.7.3: the Board is of the opinion that the outcome of national proceedings related to European patent EP 1 474 927 are not relevant for the present case and that the determination of those features having a technical nature and those that do not contribute to any technical problem is to be made on the basis of how a skilled person understands the claim. The Board does not share the appellant’s view that the invention as defined in claim 1 necessarily provides a user (e. g. a pilot) more quickly and efficiently with the information which is needed to perform her/his task. For the Board, accumulating data, keeping it up do date and selecting a relevant subset to be supplied to a specific user is an administrative task of an aircraft operator employing pilots that are legally obliged to have specific data on board an aircraft.

Annex 2:

4.8.4 ad 4.7.4: The Board notes that Annex 2 was published in 2016 and does not see a link between the testimonials of slide 13 (for the Aviobook® EFB Platform shown from slides 14 to 25) and the invention defined by the present claims. In particular, the way of displaying information according to slides 14 to 21 and the system architecture of slides 22 to 25 are not present in the method of claim 1. Post-published Annex 2 cannot support an inventive step of claim 1. Even if Annex 2 were considered to establish the commercial success of the Aviobook® EFB Platform, it does not provide evidence that this commercial success derives from the technical features of claim 1.

Annex 3:

4.8.5 ad 4.7.5: The Board agrees that Annex 3 describes the wish to reduce the risk of human errors during the take-off phase of flight. The Board is of the opinion that the method according to claim 1 does not include technical features that necessarily reduce errors made by humans or avoid inappropriately designed or unavailable material, because the invention according to claim 1 only specifies the way the pilot obtains data, and does not improve the quality of the data itself.

For reasoning its decision, the Board focused on the specific embodiment in which a pilot is to perform a flight (indeed, claim 1 is formulated much broader):

4.3 Although claim 1 is not limited to the particular case of a pilot who is to perform a given flight with an aircraft, the Board focuses on this specific embodiment.

The Board is of the opinion that the above features relate to an administrative scheme for gathering, selecting and supplying information, which a pilot requires during a flight (manuals, handbooks for the aircraft, weather information, flight planning, navigation charts, aircraft operation, load, information about the destination airport, etc.). This administrative scheme merely corresponds to the typical steps which an aircraft operator would take (and may be legally obliged to take) to provide the pilots with the information they require during a flight.

In other words, in order to perform the administrative scheme as defined above, an aircraft operator will have to maintain an up-to-date collection of data (aircraft manuals, weather data, data about airports, etc.) organised in a way which enables data relevant for a particular flight (time, location, type of aircraft) or pilot (qualification) to be easily retrieved. In order to be provided with the relevant data, the pilot must necessarily “register” by identifying himself, the aircraft, the start and destination airports and the time of the flight. Once a pilot has “registered” himself and given the details about his flight (start and destination, type of aircraft, time of the flight, etc.), the aircraft operator would have to select the relevant data and supply the selected data to the pilot.

Against this background, the Board further argued as follows:

4.4 In view of the above identified technical features, the closest prior art is a notorious server/client system with a communicating link between server and client device.

Although the Board has no doubts that a server/client system was well known at the priority date of the present application, it wishes to point to D1, D8 and D9, which all disclose an interface (of a pilot) with means for running a program (D1: 2, 3 in figure 1; D8: 10 in figure 3; D9, 12 in figure 1), a central information storage system (D1: 5 in figure 1; D8: 38 on figure 3; D9: 14 in figure 1) having means for comprising a database and a communication link for providing communication between the interface and the central information storage system (D1: 4, figure 1, D8: figure 3; D9: figure 1).

4.5 It is established case law that non-technical features cannot contribute to inventive step, but may legitimately form part of the problem to be solved (T 641/00), for example in the form of a specification of requirements given to the skilled person to implement, see Case Law of the Boards of appeal, 9th edition, 2019, I.D.9.1.4.

Starting from the closest prior art, the objective technical problem to be solved by the skilled person, a computer engineer, is to implement the non-technical administrative schemeon the notorious server/client system.

Finally, the Board concludes that the subject-matter of claim 1 lacks an inventive step:

4.6 It is the view of the Board that it would be obvious for a skilled person having normal programming skills to arrive at the subject-matter of claim 1 …

Hence, the appeal was dismissed.

Some comments on procedural aspects

In the present case, the appellant informed the Board that he will not attend the oral hearing which was considered by the Board as a withdrawal of the request for oral proceedings:

2. Procedural issues

In preparation for the oral proceedings, the Board issued a preliminary opinion on the case, see section III. above.

The appellant’s declaration of non-attendance at the oral proceedings is considered by the Board as equivalent to a withdrawal of its request for oral proceedings (see Case Law of the Boards of Appeal of the European Patent Office, 9th Edition, 2019, III.C. 4.3.2).

Therefore, keep in mind, if non-attendance is declared, it is likely that no oral hearing will take place at all.

More information

You can read the whole decision here: T 2316/16 () of 12.2.2021

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