Author Archive

Predicting future acquisitions: non-technical

This decision is interesting for shop operators and concerns predicting future acquisitions. However, the EPO considered this non-technical. Here are the practical takeaways from the decision T 0977/17 (Storing electronic receipts/OTTO GROUP SOLUTION PROVIDER) of June 17, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

A technical problem must be derivable from the claim wording.

Business research activities are excluded per se from patentability.

The invention

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

The invention concerns a method for systematic storing and analysing of electronic and printed payment certificates documenting purchases made by a user (see originally filed application, page 1, paragraph 1; page 7, paragraph 2).

A corresponding system according to Fig. 2 includes a central database 140 connected to a computer 110, such as a shop cash register equipped with a bar code scanner (page 10, lines 10 to 28). In a preparatory phase, the database registers the user and creates an account (page 2, lines 23 to 26). After the registration, the user is provided with an identification card comprising a unique bar code 120 (paragraph bridging pages 2 and 3).

When a user makes a purchase, the cash register creates a payment certificate and stores it locally (page 2, lines 14 to 18; page 9, lines 22 to 25). Then, the user is authenticated by scanning the bar code (page 9, lines 26 to 28) and if the authentication is successful, the cash register transmits the stored payment certificate to the central database over the Internet (page 10, lines 4 to 9). The database then stores the received payment certificate in association with the user’s account (page 2, lines 4 and 5).

In addition to collecting the electronic payment certificates, the invention enables information extracted from printed payment certificates to be input into the database. To this end, the invention uses a scanning device and optical character recognition (OCR) methods (page 7, lines 9 to 18).

The database includes a statistical application analysing data extracted from payment certificates assigned to the user’s account (page 5, lines 25 to 32) in order to predict future purchasing behaviour of the user (page 6, lines 26 to 32). This might include for example predicting the probability that the user will want to purchase a certain product or a price he will be willing to pay for it (paragraph bridging pages 6 and 7).

Fig. 2 of WO 2013/068378 A1

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

  • Claim 1 (main request)

Is it patentable?

In the first instance, the Examination Division refused the application due to lack of inventive step in view of prior art document D1.

According to the Board, claim 1 includes the following two distinguishing features:

2.1 … It is common ground that claim 1 differs from D1 by:

A) Predicting future acquisitions by a user and/or parameters of future acquisitions by a user based on previous acquisitions by the user and/or parameters of previous acquisitions by the user.

B) A scanning device adapted to scan a printed payment certificate and extract information from the printed payment certificate for further processing of the information in the database.

However, the Board in charge arrived at the conclusion that both features lack a technical character.

Concerning feature A, the Board reformulated the technical problem and argued that this problem is of non-technical nature:

2.2 Concerning feature A, the appellant argued that it solved the objective technical problem of how to select a product to be presented to a user and to adjust the timing and location of the presentation of the product to the user. The examining division formulated a similar problem.

However, the Board considers that this problem formulation is not correct. Firstly, it is not derivable from the claim, which does not mention presenting products to the user. Secondly, even assuming for the sake of argument that the claimed method predicts time and location at which a user is likely to make future purchases, this is in the Board’s view not a (further) technical effect counting towards an inventive step. Rather, using statistical methods to predict future purchases based on previous ones is a business research activity excluded per se from patentability under Article 52(2)(c) and (3) EPC (cf. decision T 154/04, points 19 and 20 of the reasons).

Using the COMVIK approach (see decision T 641/00) this non-technical functionality cannot contribute to an inventive step and is instead given to the skilled person within the framework of the objective technical problem. Accordingly, the Board considers that the skilled person faces the objective technical problem of implementing feature A in the system of D1.

Concerning feature B, the Board once more arrived at the conclusion that no technical character is present since the feature would merely relate to considerations concerning cognitive business content:

2.4 However, the Board considers that none of the purported effects qualifies as a further technical effect counting towards an inventive step.

Firstly, the advantages of increased data accuracy and ease of analysis are not derivable from the original application which does not explain why paper certificates are used. The application does not mention the format and content of printed certificates.

Secondly, even assuming that using the printed certificates indeed provided the alleged advantages, the decision to use these certificates would be based on considerations concerning their cognitive business content. These are purely business considerations.

Hence, the Board judges that at the claimed level of detail the requirement to use printed certificates does not involve any technical considerations and constitutes non-technical business matter.

To defend claim 1, the appellant argued that the distinguishing features A and B would produce a synergistic technical effect based on technical considerations:

2.8 The appellant argued further that features A and B were functionally interdependent and it was not correct to analyse them separately. More specifically, inputting into prediction algorithms more accurate and complete data facilitated these algorithms’ operations. As a result, it was possible to use less sophisticated prediction software. This was a synergistic technical effect.

However, the Board in charge was not convinced and maintained its position as outlined above:

2.8 … However, the Board considers that the distinguishing features do not interact synergistically. Firstly, the alleged synergistic effect is not derivable from the original application (cf. point 2.4. above). Secondly, the claim covers the case in which electronic payment certificates make up a vast majority of all analysed certificates and the Board cannot see how using few printed certificates (say, one printed certificate versus one million electronic ones) could allow simplifying the prediction software. Thirdly, as set out above, predicting future acquisitions is a non-technical business activity. Improving this activity by basing the predictions on more accurate business data does not give rise to a technical effect which could provide a basis for the alleged synergy.

As a result, the appeal was dismissed due to lack of inventive step.

You can read the whole decision here:T 0977/17 (Storing electronic receipts/OTTO GROUP SOLUTION PROVIDER) of June 17, 2021.

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Dynamically enabling customized web content: non-technical

This decision concerns dynamically enabling customized web content which was considered non-technical. Here are the practical takeaways from the decision T 1632/18 (Dynamically enabling customized web content/LIVEPERSON) of May 21, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

A technical effect must be adequately supported by the claim wording.

The invention

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

The invention

1. The application relates to generating customised web page content based on a visitor’s interactions with the web page, for example targeted advertising in web pages (description of the application as originally filed, paragraphs [0003], [0012], [0026], [0039], [0041], [0044], [0047]).

For example, a website provider of web page content can partner with a video company to incorporate video content such as advertisements into the website provider’s web pages without modifying the original Hypertext Markup Language (HTML) code of the web pages (description, paragraph [0043]). A web page visitor’s interactions with a website can be stored as a cookie (paragraphs [0045] to [0048]).

In one implementation, the content of a web page already includes a tag in HTML code that references (e.g. with a URL link) a JavaScript file (the “default tag code”) on a custom content server different from the website’s server (i.e. the general content server; paragraphs [0022], [0043]). The website provider can create rules that cause video content (i.e. the new content) to be downloaded from a custom content server and added into web page content using the tag. For example, the website provider can configure a rule so that (upon the occurrence of a condition) video code is uploaded to, and executed on, the visitor’s browser, resulting in the video content being integrated into web page content without the visitor having to navigate away from the web page (paragraph [0043]).

Fig. 1 of WO 2011/127049 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request - itemisation added by the board)

Is it patentable?

The Board in charge identified three distinguishing features over the closest prior art document D1:

2.5 The claimed invention thus differs from the method of document D1 in the following distinguishing features:

DF1 The rules and the web page data are stored on different servers (custom content server and general content server), and the (client) computing device communicates with both servers.

DF2 The web page requested from the general content server contains a tag configured to facilitate communication between the computing device and the custom content server, the tag causing a request for the default tag code to be transmitted to the custom content server, which then receives that request.

DF3 The tag module is associated with an identifier to which the behaviour data (of the user’s interaction) is appended and which is used for selecting a rule from the set of rules stored on the custom content server.

In the statement of grounds of appeal, the appellant argued the technical effect and the objective technical problem to be solved as follows:

2.6 … the technical effect was that it was simpler to install and maintain customisation of web page content. Thus, an objective technical problem to be solved could be formulated as how to provide a method for dynamically customising web page content which is simpler to install and maintain.

However, in the written proceedings, the Board in charge did not agree and formulated the technical problem underlying the present application in a different way which is in accordance with what is described in the description:

1.6.1 … Consequently, the board finds that the claimed method solves the more specific problem (see paragraphs [0043] and [0044] of the description) of how to allow a third party company (such as an advertising company) to customise the behaviour of a website (as known from document D1) for each individual visitor by incorporating third party content into web page content of a website provider.

In the written reply to the Board’s communication, the appellant reformulated the technical problem and argued that the distinguishing features provide the technical effect of reducing the load of the general content server:

2.7 In its written reply to the board’s communication, the appellant argued that the distinguishing features provided the technical effect of reducing the load of the general content server.

Again, the Board did not agree due to the following two reasons:

2.8 In the circumstances of the present case, the board does not recognise the alleged effect of load reduction as a technical effect. Firstly, there is no disclosure in the application as filed regarding this effect. Secondly, the board does not consider that moving processing tasks from the general content server to the custom content server in order to bring a task under the administrative control of a third party which controls the custom content server, as in the present case, can be regarded as a technical consideration.

During the oral hearing, the appellant once more reformulated the technical problem:

2.10 The appellant then reformulated the problem, during the oral proceedings, as “how to implement a scalable computer system in which a content provider can incorporate customised web page content into general web page content of different web page providers”.

In the hearing, the Board expressed that a solution to this problem is not reflected by the claim wording:

2.10.1 As discussed at the oral proceedings, the board does not find any support for scalability with respect to customers in the wording of claim 1

As a result, the Board was not convinced that the distinguishing features contribute to a technical effect or are based on further technical considerations. Hence, the appeal was dismissed due to lack of inventive step in view of D1.

More information

You can read the whole decision here: T 1632/18 (Dynamically enabling customized web content/LIVEPERSON) of May 21, 2021

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Simulation of weldments: non-technical

This decision concerns the simulation of weldments. However, the simulation was considered non-technical by the EPO, specifically in light of the decision G1/19 of the Enlarged Board of Appeal. Here are the practical takeaways from the decision T 2594/ 17 () of May 20, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

This is one of the first decisions referring to the Enlarged Board of Appeal decision G1/19 regarding computer-implemented simulations.

For the purposes of assessing inventive step of a computer-implemented simulation, it is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or 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 system and a method for carrying out virtual (computer-simulated) testing and inspection of virtual (computer-simulated) weldments.

The claimed system renders 3D images of virtual weldments. The virtual weldments are generated using a virtual reality arc welding system, which is described in detail in the application.

The system carries out a series of computer-simulated tests on the rendered virtual weldments. These computer simulated tests correspond to tests carried out in “real-life” weldments in order to assess their quality and identify possible defects. The system renders animations of such tests and displays the virtual weldment after the test. The user can then inspect the tested virtual weldment by moving the image around in a display.

The system is conceived for a training context in which trainees generate virtual weldments, which are then tested and the result of the test can be used as criterion for passing or failing an examination.

Fig. 2 of WO 2012/137060 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The Board in charge considered the claimed system to be a general purpose personal computer configured to execute virtual testing and inspection of virtual weldments. Hence, a common computer was considered as a suitable starting point for the assessment of inventive step:

3.1.3 The board concludes from the above that the claimed system is a general purpose personal computer configured to execute virtual testing and inspection of virtual weldments.

3.1.4 The board considers thus a notoriously well-known, general purpose, personal computer to be a suitable starting point for the skilled person.

On the differences over the closest prior art and on the underlying technical problem, the Board commented as follows:

3.2 Differences and technical problem

3.2.1 Compared to such a notoriously well-known personal computer, the claimed system differs in that it can (“is operable to”) execute coded instructions including a rendering engine configured to render a 3D virtual weldment and an analysis engine configured to perform simulated testing and inspection of the 3D virtual weldment for pass/fail conditions and/or defect/discontinuity characteristics. In addition, the display device can display the 3D images of the weldment and the user interface allows the user to move the displayed images around (“manipulating an orientation”).

In essence, the claimed system renders a 3D image, which can also be an animated 3D image (of a virtual weldment) and processes this image by simulating testing and inspection of the virtual 3D weldment. It then displays the processed image and allows the user to move it around.

Importantly, the Board in charge stated that the claimed subject-matter (as well as the application as a whole) only refers to the testing of virtual weldments and not to “real life” weldments:

3.2.2 As a first point the board notes that the claimed system carries out computer-simulated testing and inspection of a virtual weldment, i.e. of a computer-simulated weldment and not of a physical, i.e. “real life”, weldment.

3.2.3 Moreover, the claimed system does not simulate such tests carried out on a “real life” weldment. In other words, there is no particular “real life” weldment that needs to be tested (and inspected) and instead of carrying out “real life” tests on it, computer-simulated tests are carried out on a computer-simulated virtual representation of that particular “real life” weldment. As the application describes, only a virtual weldment is generated, mainly for training purposes, and without any link to a particular “real life” weldment.

As such, the  the claimed system would only refer to image processing which is a non-technical task as conformed by a plurality of decisions of the EPO’s Boards of Appeal:

3.2.5 In the board’s opinion, therefore, the claimed system carries out image processing. Images of weldments are rendered, manipulated and displayed. That the images represent weldments or that the manipulations represent testing and/or inspection of those weldments is, in the general manner claimed and described in the application, the result of the cognitive content (information) of the displayed images. It is the user who perceives the images as weldments and the manipulation of those images as testing and/or inspection. Such cognitive information (“what” is displayed) is not related to any technical problem or technical constraints. This applies also to the type of tests (e.g. destructive or non-destructive) the system is able to simulate.

It is established case law that the cognitive content of a displayed image (“what” is displayed) is in principle not a technical feature (Case Law of the Boards of Appeal of the EPO, 9th Edition, July 2019, I.A.2.6).

Against these finding, the appellant argued inter alia as follows:

Making reference to paragraph [0043] of the application, the appellant pointed out that simulated weldments generated using the VRAW system could be used beyond training. Such a simulated weldment could be integrated in a simulated bridge and the testing could involve simulations of the bridge over time in order to estimate whether the quality of the weldment would influence the life time of the bridge. In analogy to the reasoning of the decision T 625/11, where the deciding board had concluded that a simulation of a nuclear reactor was technical, the features relating to the simulation of the testing of the weldment were also to be seen as technical.

However, according to the Board in charge, the appellant’s arguments would not be in line with the decision G1/19 of the Enlarged Board of Appeal:

3.2.10 Secondly, regarding the technical character of the simulation, the board notes that the decision referred to by the appellant was cited in decision G1/19 of the Enlarged Board of Appeal (EBoA)(see point 109 of the reasons), which relates to computer-implemented simulations. In G1/19 the EBoA concluded that, for the purposes of assessing inventive step of a computer-implemented simulation, it is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or process (see e.g. points 1 and 2 of the Headnote).

Hence, even if the computer-simulated testing of the virtual weldment were to be carried out within a computer-simulated simulation of a bridge (the bridge having incontestably sufficient technical character), this would not have any influence on the board’s assessment of inventive step of the features of the claimed invention. Moreover, the board points out that in the system of claim 1 of the Main Request there is no mention of nor any suggestion to such a type of testing at all but only of testing used for training purposes, as the reference to the determination of a pass/fail condition indicates.

Hence, the Board considered the distinguishing features as not technical:

3.2.11 Summarising, the claimed system differs from a notoriously well-known general purpose computer in that it is configured to display images of virtual weldments, of virtual testing of those virtual weldments, and of the results of the virtual testing on those virtual weldments. It can also determine a pass/fail condition based on those results.

These differences relate only to the cognitive content of the images and the board does not consider them to be technical features (see point 3.2.5 above).

As a result, the Board ignored the distinguishing features for assessing inventive step and thus considered the claimed subject-matter to be rendered-obvious. Hence, the appeal was dismissed.

More information

You can read the whole decision here: T 2594/ 17 () of May 20, 2021

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Managing media in a network: non-technical

This decision concerns a media management application. However, the effect produced by said application was considered non-technical by the EPO. Here are the practical takeaways from the decision T 2950/18 (Managing media in a network) of May 5, 2021 of Technical Board of Appeal 3.4.07:

Key takeaways

Features that only relate to the presentation of information in an intuitive way are generally considered non-technical and therefore cannot contribute to inventive step.

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 invention

The application relates to utilising a media management application to manage, control and/or render media from a collection of digital media files in a network. The proposed invention allows a user to browse, search, manage or render content from multiple servers in the network. The user may view a visual representation of active media connections between the available servers and the available rendering devices connected to the network (description as published, page 1, lines 8 to 18).

Figure 6 illustrates a connections sub-view of a media management application disclosed in the application and is further described in the description, page 37, line 8, to page 39, line 30. The connections sub-view displays a graphic representation of media flowing between the servers and the rendering devices. The user may interact with this graphic representation to control the media flow between devices.

Fig. 2 of WO 2009/123694 A2

Here is how the invention was defined in claim 1:

  • Claim 1 (main request - labeling A, B ... added by the Board)

Is it patentable?

At the end of the examination phase, the examining division rejected the present application due to lack of inventive step. In its statement of grounds of appeal, the appellant argues as follows:

3.4.1 In its statement of grounds of appeal (page 4, second paragraph), the appellant essentially agrees that the distinguishing features over document D1 relate to the graphic representation displaying a first list of icons according to feature B and a second list of items that is, according to the last part of feature C, displayed as icons simultaneously with the first list of icons and wherein a connection between an icon of the first and the second list of icons indicates the selected transmission of a media file from a server to a destination (feature F of claim 1).

3.5 In its statement of grounds of appeal (last paragraph of page 4, first paragraph of page 5), the appellant submitted that the display of a graphic representation as specified in claim 1 provided users with feedback on their selection of the rendering device to which the media file is to be transmitted. Displaying graphic indications provided a representation of media flowing between the servers and the rendering devices (see description, page 37, lines 27 to 29) and allowed a user to monitor how media was transmitted between devices. This made it easier for the user to track transmission of media, envision a functional picture of the network, and manage and/or troubleshoot the network (see description, page 6, lines 10 to 21).

According to the appellant, the objective technical problem could be considered to be how to enable the user to more effectively and efficiently manage media transmissions in the network (statement of grounds, page 5, third full paragraph).

However, the Board in charge did not follow the appellant’s line of argumentation because it considered the distinguishing feature over the cited prior art as non-technical:

3.6 The board considers that the distinguishing features do not contribute to solving a technical problem. It agrees with the examining division that the particular manner of presenting the network and the transmission (displaying two lists of icons representing servers and rendering devices simultaneously and displaying connections between servers and rendering devices) concern aspects that are directed to graphical representations of information in a manner particularly appealing to some users (“intuitive”). The board considers that these particular aspects concern merely the manner in which the information is presented and do not contribute to the technical character of the claimed invention.

Hence, the Board ignored the non-technical feature for assessing inventive step and arrived at the result that the subject-matter as claimed is rendered-obvious by the cited prior art. Thus, the Board in charge dismissed the appeal.

More information

You can read the whole decision here: T 2950/18 (Managing media in a network) of May 5, 2021

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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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