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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Projection surface with built-in track pad: technical

This decision relates to an European patent application for an interactive food and/or drink ordering system and method. Here are the practical takeaways from the decision T 2251/13 (Projection surface with built-in track pad/ORDAMO) of 13.4.2021 of Technical Board of Appeal 3.5.01:

Key takeaways

The fact that the problem is formulated as “how to provide an alternative” does not automatically mean that the solution is obvious.

The invention

The invention concerns an interactive food and/or drink ordering system in a restaurant. The main idea is to project a menu onto the restaurant table (Figure 1). The table has a built-in track pad allowing the guest to select and order food and/or drinks from the menu.

Fig. 1 of EP2102801

The system comprises a projector that is mounted above the table and connected to a computer (Figure 15). Also the track pad is connected to the computer via a short range wireless network such as Bluetooth.

Fig. 15 of EP2102801

Here is how the invention was defined in claim 1 in the final request during the oral proceedings:

  • Claim 1 (main request)

Is it patentable?

Initially, the Board of Appeal agreed with the Examining Division that the subject-matter of (old) claim 1 lacked of inventive step (Article 56 EPC) in view of D1 (US 2005/273345) in combination with D3 (Ammer A: “Projector-Camera System for Flexible Interactive Projections”, 2005, Stockholm University, Stockholm, Sweden, XP002470986).

The appellant did a good job convincing the Board of Appeal and could submit a new main request with amended claim 1 during the oral proceeding.

New claim 1 submitted during the oral proceedings survived the COMVIK test:

3.1 The examining division assessed inventive step starting from D1 which relates to a food and drink ordering system comprising a computer terminal.

In the Board’s view, however, D3 is a better starting point because it is related to a projector-camera system for interactive projections, which is technically closer to the claimed invention. In other words, D3 requires fewer technical modifications to arrive at the subject-matter of the claims.

D3 explicitly mentions in paragraph 1.1 on page 2 that the projector-camera system may be used on a restaurant table to show the menu. However, even without this, D3 would be a good starting point, because the use of the projector-camera system in a restaurant to show the menu is a non-technical aim which does not contribute to inventive step under the “Comvik approach” (see T 641/00 – Two identities/COMVIK). Therefore, it is irrelevant whether or not this is disclosed in the prior art. What counts is the technical disclosure.

3.2 It is common ground that the invention in claim 1 differs from D3 by (i) the ordering of food and/or drinks from the menu, and (ii) a track pad that is “built into the [projection] surface”.

In D3, the user interacts with the system by using his fingers (paragraph 3.1 on page 8). The system makes use of a fingertip finding algorithm (paragraph 4.1) to identify the user’s interaction.

3.3 In its preliminary opinion, the Board considered that the ordering of food and drinks (i) constituted an obvious implementation of a non-technical requirement. The appellant did not contest this. Instead, the feature that was given patentable weight was the second one (ii), namely the built-in track pad.

3.4 The appellant argued that the built-in track pad provided a clearer projection surface, because the projected image was not obstructed by the user’s hand as in D3 (see Figure 7).

The Board is not convinced that the invention has this effect, because claim 1 does not exclude that the track pad covers parts of the projection area. Furthermore, a fingertip interface could be designed such that the user points at projected buttons or the like which do not contain any information. Therefore, the Board does not see that the built-in track pad has any technical effect beyond providing an alternative to the fingertip interface in D3.

3.5 The question that remains to be answered is whether this would have been an obvious alternative. The fact that the problem is formulated as “how to provide an alternative” does not automatically mean that the solution is obvious. Also the fact that the alternative, here a track pad, was well known per se is not enough. There has to be some hint or incentive, in the prior art, or in the skilled person’s common general knowledge, to provide the alternative.

3.6 In fact, the invention is not merely the use of a track pad as an input device. It involves building the track pad into a table top or a similar surface that is used as a projection surface. Although, as the examining division pointed out, there is no detailed implementation of this feature, the Board judges that “built into” implies at least that the device forms an integral part of the table top structure.

The examining division considered that this was a “straightforward constructional detail”. However, they did not refer to any prior art that disclosed such a built-in interface. Nor can this be said to be common knowledge.

3.7 At the oral proceedings it was discussed whether the idea of building something into a surface, e.g. to make it more permanent or less obtrusive, could be a routine design skill and part of the skilled person’s “mental furniture”, discussed for example in decision T 190/03 – Multiple subtitles/EDICO at point 16.

Although this seems plausible, in the end the Board judges that on balance this is not the case. The required amendment and design skill is in the field of mechanics. However, the skilled person in this case is a specialist in computer systems who would not necessarily have these routine design skills and would not have considered modifying a table top structure in order to provide an alternative input interface without a further hint.

Therefore, claim 1 was considered to involve an inventive step. At the end, the case was remitted to the Examining Board to grant a patent.

More information

You can read the whole decision here: T 2251/13 (Projection surface with built-in track pad/ORDAMO) of 13.4.2021 of Technical Board of Appeal 3.5.01.

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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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Determining an analysis chronicle: non-technical

This decision relates to an European patent application for analyzing a set of information. However, the distinguishing features were considered non-technical by the Board of Appeal. 

Here are the practical takeaways from the decision T 1971/18 (Determining an analysis chronicle/NOKIA TECHNOLOGIES OY) of March 8, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

Presentation of information as such is excluded from patentability under Article 52(2)(d) and (3) EPC.

Reduction of user distraction or disruption by selectively presenting information to the user fulfils the cognitive interests or needs of the user, which is not a technical purpose or based on technical considerations.

A bonus effect which is at best incidental to a non-technical solution is not a technical effect on which an inventive step can be based.

The invention

The application relates to monitoring information sources for a user and presenting information to the user without superfluous content such as a similar news story from a plurality of information sources. The invention relies on “analysis criteria” to express rules for filtering information. The analysis criteria is represented by a graph (cf. Fig. 2A), in which each leaf node corresponds to a condition and each intermediate node corresponds to a “directive” associating the conditions to which it is connected.

Fig. 2A of EP2550611

In the method according to the invention, “analysis chronicles” are determined, where an analysis chronicle indicates which nodes of the analysis criteria are positively determined by a set of information. Further, the method determines whether a change occurred between two analysis chronicles. Change determination may be based, at least in part, on the presence of a significant difference between the analysis chronicles. If a change occurred, an operation is performed, e.g. providing indication of at least part of the analysis chronicle (cf. Fig. 3).

Fig. 3 of EP2550611

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The board finds it appropriate to assess inventive step starting from a well-known apparatus configured with such an aggregator which continuously receives sets of information from different information sources filtered according to the user’s informational preferences, and presents the filtered and aggregated information to the user (here based on D4).

According to the board:

2.2 The subject-matter of claim 1 differs from the well-known apparatus configured with an aggregator in that (using an itemisation corresponding to that used in the grounds of appeal):

(e to g) the analysis criteria comprises a root node and a plurality of nodes associated with the root node, the plurality of nodes comprising a plurality of nodes relating to a condition and one or more nodes relating to a directive that associates two or more of the nodes relating to a condition;

(h) a set of information is determined to comply with the analysis criteria at least by virtue of the root node of the analysis criteria being determined positively by the set of information;

(i) and (j) if the set of information complies with the analysis criteria, the analysis chronicle is determined as a record that indicates which nodes of the analysis criteria are positively determined by the set of information;

(k to n, o’) information is presented to the user if the analysis chronicle is determined to have changed by determining that a difference between the analysis chronicle and another analysis chronicle associated with a previously received set of information is significant, wherein the difference between the analysis chronicle and the another analysis chronicle is significant if it is within a particular number of nodes from the root node.

An experienced patent attorney would already recognize that these distinguishing features seem to be only a mathematical method.

The appellant tried to argue that there is a technical effect to reduce the operations being performed. However, the board considers that the alleged effect is only a bonus effect, which is not the purpose of the distinguishing features:

2.5 Only the purposive use of non-technical features in the context of a solution to a technical problem may contribute to the technical character of an invention (see T 49/99 of 5 March 2002, Reasons 7) and a bonus effect which is at best incidental to a non-technical solution is not a technical effect on which an inventive step can be based (T 1023/06, 7 December 2006, Reasons 3.7.2, T 2230/10 of 3 July 2015, Reasons 3.4 to 3.8). The purposive use can be established if technical considerations are present for the adoption of non-technical features with the view to achieve a technical effect or solve a technical problem (T 697/17 of 17 October 2019, Reasons 5.2.3 and 5.2.4, T 244/00 of 15 November 2001, Reasons 12 and 13).

In the prior-art aggregator, filter criteria (corresponding to the analysis criteria of the invention) are used and updates are presented to the user. Compared to that, the distinguishing features serve the purpose of presenting to the user information only if it significantly differs from previously displayed information. Within the context of the claimed apparatus, the distinguishing features are not concerned primarily with the reduction of operations, which only occurs if the information does not change significantly. Therefore, the purpose of the distinguishing features is not technical.

A technical contribution could reside on the implementation of the apparatus. The distinguishing features provide details of the software implementation, including the data model used to represent the analysis criteria and analysis chronicle as graphs, and details of how they are used to determine significant changes of an information set. However, these features are not based on technical considerations as they concern only the abstract data model and mathematical algorithms used, which are computer-program features as such excluded from patentability (Articles 52(2)(c) and (3) EPC).

2.6 Therefore, none of the distinguishing features contributes to solve a technical problem. Since such non-technical features cannot support the presence of an inventive step, the subject-matter of claim 1 of the main request is not inventive (Article 56 EPC).

Since none of the auxiliary requests can add contribution to solve a technical problem, the appeal was dismissed.

More information

You can read the whole decision here: T 1971/18 (Determining an analysis chronicle/NOKIA TECHNOLOGIES OY) of March 8, 2021 of Technical Board of Appeal 3.5.07.

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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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Three-dimensional motion graphic user interface (MGUI): non-technical

This decision relates to an European patent application for a three-dimensional motion graphic user interface (MGUI). However, the distinguishing feature was considered non-technical by the Board of Appeal. While this is a short decision, there are still some interesting aspects to learn about patenting GUIs. 

Here are the practical takeaways from the decision T 1677/18 (Polyhedron components 2/SAMSUNG) of May 3, 2021 of Technical Board of Appeal 3.5.05:

Key takeaways

Reducing screen clutter and presenting the user with more details in a GUI are not technical requirements.

Modifying the presentation of a GUI does not produce a technical effect.

The invention

The European application aims to provide an improved three-dimensional motion graphic user interface (3D MGUI). According to one aspect, the 3D MGUI comprises a first polyhedron component that is formed of a plurality of faces. At least one of the plurality of faces that are subordinate to the first polyhedron component has predetermined attributes and displays information according to the attributes. The first polyhedron component is separated into a plurality of second polyhedron components according to a user’s action with respect to the faces. A hierarchy of menus and sub-menus is assigned to specific faces of these polyhedron components.

Fig. 3A and 3B of EP1624368

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The appeal was withdrawn after the Board had issued its preliminary opinion. The decision merely confirmed the preliminary opinion that the distinguishing features of the application were non-technical:

3. The appellant thus seems to have suggested that the second polyhedron components in claim 1 of the main request may display sub-menus on more than one face and that these sub-menus have some form of relationship with the menu on the selected face of the first polyhedron component. In its preliminary opinion, however, the board informed the appellant that whether the sub-cubes displayed sub-menus on one face or on a plurality of faces and the relationship between these menus/sub-menus were non-technical differences in GUI design in which the board could not discern any technical effect.

4. In the statement setting out the grounds of appeal, the appellant referred to T 928/03, arguing that “facilitating a continued human-machine interaction by resolving conflicting technical requirements [was] a possible technical purpose”. It submitted that the distinguishing features of claim 1 of the main request resolved conflicting “technical requirements” of this kind, namely giving the user easy access to all kinds of details without overly cluttering the screen. However, as the board informed the appellant in its preliminary opinion, reducing screen clutter and presenting the user with more details in a GUI are not technical requirements.

5. Regarding claim 1 of the first auxiliary request, the appellant had argued in the statement setting out the grounds of appeal that D1 did not disclose “the modification of information” or “how a use may be enabled to modify the shown information”. However, as noted in the board’s preliminary opinion, modifying the presentation of a GUI does not produce a technical effect.

As a result, the Board confirmed that claim 1 does not involve an inventive step. Thus, the appeal was dismissed.

More information

You can read the whole decision here: T 1677/18 (Polyhedron components 2/SAMSUNG) of May 3, 2021 of Technical Board of Appeal 3.5.05

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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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Image data arrangement: non-technical

This decision concerns an European patent application for image data arrangement, which was considered non-technical by the EPO. Here are the practical takeaways from the decision T 1294/16 (Image data arrangement/OMRON) of March 10, 2021 by the Technical Board of Appeal 3.5.06:

Key takeaways

It is of constant jurisprudence that only features contributing to the solution of a technical problem by providing a technical effect can contribute towards a finding of inventive step.

Differences in mathematics can lead to a finding of inventive step only if they contribute to defining a technical solution in a field of technology not excluded under Articles 52(2) and (3) EPC.

The invention

The application relates to the detection of patterns on products in manufacturing context. Starting from the known technique of using normalized cross correlation (NCC) to detect known patterns in grayscale images, the application aims at providing a robust NCC method for color images. For this purpose, the 3-color image is transformed into a 2D or 1D matrix by rearranging the values according to predetermined rules. The NCC is then computed on this matrix.

Fig. 3 of EP1783664

Fig. 4 of EP1783664

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The Board considers claim 1 of the main request obvious in view of D1/D2.

The more interesting discussion for us is about the first auxiliary request:

21. This request differs from the main request in that it defines two alternative rules of arranging the color values in a single data array.

22. This arranging does not change the result of the color NCC, which remains identical to that of D1, as the order of the elements is irrelevant for the result of the computation (compare equation 2 of D1 with equations 1 and 4 in the application). This was not contested by the appellant. There is therefore no technical effect in terms of the results of the detection procedure.

The appellant argued why D1/D2/D7 do not solve the same problem. Furthermore, the appellant argued the following:

24. Moreover, there was no requirement under Article 56 EPC of a technical effect. Even if a technical effect was not acknowledged, the claim should be recognized as compliant with Article 56 EPC (1973) because it was not obvious. Starting from D1 or D2 there was no pointer to the specific data arrangements claimed.

However, the above-given argument was not shared by the Board:

25. In response to this second point, the Board recalls that it is of constant jurisprudence that only features contributing to the solution of a technical problem by providing a technical effect can contribute towards a finding of inventive step (T 0641/00 Two identities/COMVIK, point 6). This is because the EPC provides for protection of inventions, which require a technical solution to a technical problem (Rule 27(1)(c) EPC 1973). It is the (claimed) invention, i.e. the technical solution, that needs to involve an inventive step (Articles 52 EPC and 56 EPC 1973) for a patent to be granted.

Finally, the Board considers that the distinguishing feature of claim 1 of the first auxiliary request has no technical effect:

26.2 The Board does not dispute that a technical effect might be obtained under some circumstances. But this is not sufficient for acknowledging an inventive step, because those circumstances are not claimed (nor are they in fact made clear by the description), which means that the effect is not obtained over the full breadth of the claim, which in turn leads to the conclusion that at least a subset of the claimed matter is not to be seen as a technical solution to a technical problem and hence cannot be acknowledged as an invention involving an inventive step (see also T 0939/92, points 2.4 to 2.6).

27. Regarding the argument as to the convenience for the programmer, i.e. easing the programming effort, this, in principle, cannot be considered to define an invention at all (T 1539/09, Catchword). Arguendo, even if that could be the case, the technical effect cannot be objectively assessed here, because on the one hand the programming language is not specified, and because on the other hand the answer is a matter of subjective preference: while writing code with only two loops may be more convenient, the indexes will no longer intuitively directly represent the standard RGB format, making code reading less convenient.

28. Thus the claimed data transformation means does not solve any technical problem at all, and hence cannot contribute to a finding of inventive step. As in the case of the main request, claim 1 of this request lacks inventive step starting from D1 in view of the common knowledge in the art or from D2 in view of D1 and the common knowledge in the art.

The discussion about the third auxiliary request is also interesting. Claim 1 of the third auxiliary request includes a specific mathematical formula.

35. The Board has already considered the argument as to the number of loops, so this cannot help the appellant’s case. The mathematical formula itself is different to the one in D1, but this is immaterial for the inventive-step assessment in the present context.

Differences in mathematics can lead to a finding of inventive step only if they contribute to defining a technical solution in a field of technology not excluded under Articles 52(2) and (3) EPC. This is not the case here, the proposed formula is only a mathematical equivalent of that in D1 causing no ascertainable technical effect, as discussed in the framework of the previous requests.

36. Claim 1 of this request lacks inventive step starting from D1 in view of the common general knowledge in the art, or from D2 in view of D1 and the common general knowledge in the art.

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 1294/16 (Image data arrangement/OMRON) of March 10, 2021.

This decision also concerns an interesting procedural aspect, discussed already by DeltaPatents Case Law. 

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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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Method for the detection of a movement characteristic of a vehicle: non-technical

This decision concerns a method for the detection of a movement characteristic of a vehicle. The EPO considered this non-technical. Here are the practical takeaways from the decision T 0772/18 (recording a movement characteristic of a vehicle / TELEKOM) of February 26, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

The information that a fuel consumption deviates from a reference fuel consumption or the cause of such a deviation (for example acceleration, air resistance, etc.) may be considered technical information. However, such information does not credibly support the driver in carrying out a technical task through constant and / or guided human-machine interaction.

On the one hand, the information only displayed to the driver does not contain any specific instructions on how he should control the vehicle, for example to optimize fuel consumption, and on the other hand, the real fuel consumption is not shown either, which is why this information does not contribute to the inventive step.

 

The invention

The European patent application relates to traffic telematics with the object to provide an efficient concept for detecting causes of fuel consumption of a vehicle.

For this purpose, a speed profile of the vehicle is recorded with the aid of a mobile communication device, for example a smartphone. Based on this, physical formulas are used to calculate the forces acting on the vehicle and associated partial energies, such as acceleration energy or air resistance energy, as well as a corresponding fuel consumption.

As shown in table 603 in Figure 6, these values ​​are compared with corresponding reference values ​​that are calculated from a specified reference speed. The column “LPH” in Figure 6 shows, for example, that the fuel consumption is 300% higher than the typical fuel consumption for the urban reference cycle.

Fig. 6 of EP2913792

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

Both the examining division and the Board did not question the technical character of the invention as a whole.

However, the Board considers that the distinguishing feature of claim 1 does not solve a technical problem:

2.4 The board agrees with the appellant that D2 does not disclose the calculation of a reference energy and a corresponding fuel consumption characteristic. However, it cannot see a solution to a technical problem in this, in particular not – as the appellant claims – the recognition of economical driving behavior and the optimization of fuel consumption (to be understood in the context of human-machine interaction, see T 336/14, guiding principle ).

2.5 The detection of the fuel consumption characteristic, as carried out in the last step of claim 1 …calculates an additional consumption or a saving of a fuel consumption compared to a specified reference consumption.

The mere calculation of such a characteristic does not include any feedback to the driver or any other output of this information. For this reason alone, this information cannot play a role in the interaction of the driver with the vehicle…

2.6 The information that a fuel consumption deviates from a reference fuel consumption or the cause of such a deviation (e.g. acceleration, air resistance, etc.) may be considered technical information. However, the board is of the opinion that this information does not credibly support the driver in carrying out a technical task through constant and / or guided human-machine interaction (as in T 336/14, reasons 1.2.4 and 1.2.5, or T 1000/09, reason 7, explained).

On the one hand, the information displayed to the driver does not contain any specific instructions on how to control the vehicle, for example in order to optimize fuel consumption, and on the other hand, as the testing department has already determined, it does not seem to reflect real fuel consumption either. Rather, this also depends on the preferences of the driver, for example on the selection of more efficient or less efficient gears.

At most, feedback may sharpen the driver’s understanding that he may be driving too fast or driving too often on roads with steep inclines and in city traffic. However, this alone is not sufficient to solve the technical problem mentioned by the appellant.

Since the distinguishing feature over D2 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 0772/18 (recording a movement characteristic of a vehicle / TELEKOM) of February 26, 2021.

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