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Transmitting geographical risk rating to insurance company server to determine insurance cost on the server: technical

This is an example case which involves a mixture of technical and non-technical features. Here are the practical takeaways from the decision T 2486/16 of 12.1.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

A non-technical aspect of the distinguishing feature(s) can be considered as part of the framework of the technical problem to be solved, in accordance with T 641/00 (COMVIK, see points 1 and 2 of the Headnote).

The invention

This European patent application concerns a method and device for recording driving characteristics utilized to monitor and compile vehicle usage data and diagnosing device condition for determining an insurance premium.

Some vehicle insurance currently determines price based upon information gathered by in-vehicle sensors that indicate where the vehicle was driven, how fast the vehicle was driven, times of day and days of the week, etc.

There are some concerns that the amount of detailed information that is given to the insurance companies with these types of systems intrudes on the privacy of the users.

SUMMARY OF THE INVENTION

The aim of the invention is to improve the privacy of the user.

According to the invention, the privacy of the user is protected by performing some coding prior to sending the information from the user. Specific details of the user’s driving history are converted to generalized codes that relate to insurance rates.

 

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 novelty and lack of inventive step.

On the appeal stage, the appellant argued that D1 fails to disclose features b) and c) of claim 1 of the main request. According to the appellant, the problem was how to operate a remote usage recording system in a manner that secured the location information against third parties. A secondary problem was to reduce the technical requirements of transmission. Moreover, the transmission of only the risk rating to a server rather than the full location data required the prior comparing step to occur at the vehicle, which necessitated further computing resources. While processing of this nature might be commonplace for vehicles in 2020, this was not the case at the priority date of the application. Simply transmitting all of the data was the solution at the time.

Regarding feature b), the Board interpreted claim 1 broadly:

3.5… the more general point is that claim 1 does not define that the determination of the insurance cost is based only on the geographical risk rating; it is not excluded that other information (including data collected by other sensors on the vehicle, such as the time of day or the speed) may also be part of the determination.

Hence, the Board judges that feature b) is disclosed in D1.

Regarding feature c), the Board found that D1 discloses:

  • embodiments in which the driver score is transmitted to the central system, and
  • embodiments in which the driver score corresponds to or includes a geographical risk rating.

The Board judges that the embodiments of D1 can not fully anticipate feature c) of claim 1.

Subsequently, the Board used the Problem and Solution approach to assess feature c). Here are the Board’s main considerations:

5.3 In the Board’s view, feature c) comprises both technical and non-technical aspects, and while the Board acknowledges that improved user privacy is the overall aim of the invention, in order to arrive at a precise statement of the technical problem solved by feature c) it is necessary to disentangle the technical and non-technical aspects.

5.4 The present application addresses concerns about “the amount of detailed information that is given to insurance companies” (paragraph [0003]). An obvious and non-technical remedy to these concerns, i.e. that would have occurred to a business person without requiring an engineer or programmer, would be to ensure that the insurance company never had access to this “detailed information” in the first place…

The technical problem solved by feature c) would be how to implement this solution, i.e. how to arrive at a workable method whereby an insurance cost is determined based on geographical location (as in D1), but in which the vehicle location data is not transmitted to the insurance company. In this formulation the non-technical aspect of the distinguishing feature c) appears as part of the framework of the technical problem to be solved, in accordance with T 641/00 (COMVIK, see points 1 and 2 of the Headnote).

The technical solution to this problem, according to the invention, is to transmit to the insurance company server a geographical risk rating, so that the insurance cost may be determined on the server, without requiring transmission of the actual location data.

5.5 The skilled person facing the task of providing a method whereby an insurance cost may be determined based on geographical location, but without transmitting vehicle location data to the insurance company, would readily have found a solution starting from D1:

As mentioned above, D1 discloses a driver score which may constitute or include a geographic risk rating within the meaning of claim 1, and paragraph [0015] discloses that the determination of the driver score can be carried out on the vehicle by the vehicle monitor (point 4.3, above); in such a case it is implicit that the determined driver score would be transmitted to the central system/server for the determination of the insurance cost, with no requirement or incentive to include in the transmitted signal the raw location data, which, once the driver score has been determined, is redundant. The skilled person would thereby have been led in an obvious manner to the subject-matter of feature c).

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

More information

You can read the whole decision here: T 2486/16 of 12.1.2021. 

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

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

Key takeaways

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

The invention

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

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

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

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

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

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

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

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

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

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

However, the board did not see any synergistic effect:

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

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

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

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

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

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

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

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

More information

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

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

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

Key takeaways

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

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

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

The invention

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

3. The invention

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

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

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

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

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

 

Fig. 2A WO 2012/155218 A1

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

  • Claim 1 (main request)

Is it patentable?

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

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

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

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

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

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

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

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

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

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

Annex 1:

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

Annex 2:

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

Annex 3:

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

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

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

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

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

Against this background, the Board further argued as follows:

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

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

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

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

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

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

Hence, the appeal was dismissed.

Some comments on procedural aspects

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

2. Procedural issues

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

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

…

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

More information

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

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Network-controlled SIM OTA Enabler: non-technical

This decision concerns the way how applications can be installed on a mobile phone’s SIM. One might not expect big surprises concerning the technical character in this field, but the board took a stricter view in this case. Here are the practical takeaways from the decision T 1310/17 (Anwendungen auf SIM-Karten/TELEKOM) of 11.11.2020 of Technical Board of Appeal 3.5.03:

Key takeaways

Providing the SIM OTA Enabler as a server system in the network provider’s network relates to administrative processes or administrative considerations rather than technical considerations.

The invention

This is an opposition appeal. The European patent concerns the way how applications are loaded onto the SIM card in a mobile phone (so-called “provisioning”). In the prior art, the provisioning is done either locally via the SIM card’s contacts and a card reader, or remotely via GSM/UMTS or a similar wireless interface (so-called “over the air” or “OTA” provisioning).

According to the patent, a drawback of the prior art is that the (OTA) provisioning is controlled by the network operator, so that third parties have only limited capabilities of equipping a SIM card with application software. It is therefore the problem addressed by the patent to open up the internal process of the network provider such that third parties can install their apps on the SIM cards of the network provider’s customers.

Fig. 1 of EP 2 451 135
Fig. 1 of EP 2 451 135

Here is how the invention was defined in claim 1:

  • Claim 1 in amended form (English translation by the author of this article)

Is it patentable?

In this opposition case, the opposition division had maintained the patent only in amended for according to auxiliary request 1. An appeal was filed by the opponent only.

On the opposition appeal stage, the board based its inventive-step analysis on a prior art document that already disclosed the concept of individualized application provision by a SIM OTA Enabler.

In its analysis of the differences of the claimed method over the prior art, the board first discussed whether the prior art anticipates the “forwarding” of messages to the SIM. Interestingly, the board took quite a broad interpretation of what it means to “forward” a message, which seems to rely of the board’s general understanding of the subject-matter without reference to the patent or the common general knowledge of the skilled person (all citations are translations of the German decision):

According to point 10.3 of the grounds of the appealed decision, the opposition division took the view that the “TSM” in D7 would not forward messages but would rather generate own “Perso commands” from the “Perso Data”. The forwarding of the messages would mean that the message “Ack (Perso Data)” of block 7 would have to be provided unchangedly to the SIM of the mobile terminal. Instead, the TSM of D7 unpacks the data “Perso Data” of the “Ack” message and generates different commands based on the data, which commands are then provided to the SIM of the mobile terminal. Thus, feature b4) was not disclosed in D7.

This cannot be followed. The expression “message” in claim 1 does not imply a specific limitation with regards to the underlying data packet formats or transport protocols. As explained by the appellant on page 9 of the grounds of appeal, Fig. 11 of D7 shows a forwarding by way of a bent arrow, which is the case despite a possible reformatting of the “Perso Data”.

As a result, according to the board the only difference over the closest prior art was that the SIM OTA Enabler is provided by the network provider as a server system in the network of the network provider (feature b), and that the application request is sent to the SIM OTA Enabler by a user of a SIM card (feature b2).

On the one hand, the board acknowledged that the effects of these features are expressly explained in par. [0021] of the patent. There, it is explained that the invention has “the following advantages over existing solutions”:

  1. The OTA provisioning of Javacard applications is opened to third-party providers – without having to rely on an intermediary in the sense of a Trusted Service Manager.
  2. The customer can trigger the provisioning of SIM-based Java applications him/herself.
  3. The solution can be integrated seamlessly in existing enabler platforms of the network provider.

However, the board took the view that these effects were not technical effects, but rather administrative ones:

These advantages, however, relate to administrative processes or administrative considerations rather than technical considerations. Since the distinguishing features thus do not affect technical aspects, they are taken as requirements to be fulfilled in the formulation of the objective technical problem (see T 641/00, OJ 2003, 352, Headnote II).

Therefore, the objective technical problem can be formulated … as the “implementation of a SIM/SE platform which is easier to employ on the market, i.e. the implementation of an “open ecosystem” within the network of D7, so that the network provider can provide and bill for additional services by means of the increased control over the customer. A motivation based on purely technical considerations cannot be seen.

In the end, the claimed solution was considered obvious. In the absence of additional requests on file, the patent was revoked in its entirety.

More information

You can read the whole decision here: T 1310/17 (Anwendungen auf SIM-Karten/TELEKOM) of 11.11.2020

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Checking whether a resource is likely to be available when a corresponding request is serviced: non-technical

This case is interesting for developers of online systems for selling, for example, event tickets. The basic question was whether providing a ticket sale system based on a specific queuing mechanism solves a technical problem. However, the decision also concerns whether non-technical features have to be considered regarding the assessment of novelty.

Here are the practical takeaways from the decision T 0552/14 (Queue message/TICKETMASTER) of 12.1.2021 of Technical Board of Appeal 3.5.01:

Key takeaways

Notifying a customer having requested a resource, such as an event ticket or tickets, whether the resource is likely to be available when the request is serviced is an organisational matter and thus not technical. Moreover, queuing per se is considered an administrative (or abstract mathematical) concept.

Whether non-technical features may be ignored for assessing novelty is left undecided.

The invention

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

1.1 The invention concerns a method of processing electronic queue data and providing queue messaging over a network. The idea is essentially to notify the customer having requested a resource, such as an event ticket or tickets, whether the resource is likely to be available when the request is serviced. The estimate is based on the number of requests in the queue and historical queue abandonment rates (and certainly also the available quantity of the resource in question). Based on the notification, the customer can decide to abandon or stay in the queue.

Figs. 1 and 1A of WO 2006/102354 A2

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first instance examining division rejected the present application because it would not solve a technical problem. The Board in charge generally agreed to this assessment:

2.1 The Board agrees with the examining division that a method of processing queue data comprising receiving a ticket request, estimating whether the requested ticket will be available when the request is serviced, and notifying the user if it is estimated that the ticket will not be available, does not on its own solve a technical problem. This subject-matter is, as the examining division said, an organisational matter.

2.3 (…)

Although queues may have technical applications, the act of queuing per se is an administrative (or abstract mathematical) concept. Thus, it follows that improving such a non-technical activity, by allowing it to be performed more efficiently, is not a technical problem.

Notably, the first instance examining division did not apply the well-established COMVIK approach (see T0641/00) but rejected the present application due to lack of novelty. In more detail, the examining division ignored the non-technical features of the claimed subject-matter and took only into account the technical features of claim 1 for assessing novelty:

3.1 The examining division argued that the lack of technical contribution over the prior art (a notorious computer system) resulted in a lack of novelty (Article 54(1) and (2) EPC). …

While the Board in charge agreed to the result of the examining division on the merits, it expressed some concerns whether the approach of the examining division to reject the application based on a lack of novelty was correct. Specifically, the examining division justified its reasoning by referring to three decisions, which appear to imply that only technical features may establish novelty:

3.1 … As support for this approach, the examining division referred to decisions G 2/88 (Friction reducing additive), T 172/03 (Order management/RICOH), and T 154/04 (Estimating sales activity/DUNS LICENSING ASSOCIATES).

3.2 The cited decisions indeed seem to suggest that only technical features can establish novelty. However, the individual statements made in these decisions have to be seen in the context of the decision as a whole and not just in isolation. None of the decisions applies the “approach” to a computer-implemented invention.

However, the Board came to the conclusion that from none of the three cited decisions it could be generally deduced that only technical features were to be considered for the assessment of novelty. G 2/88 only referred to the specific example of a use claim

3.3 G 2/88 includes the following statement:

“a claimed invention lacks novelty unless it includes at least one essential technical feature which distinguishes it from the state of the art”.

The statement was made in the specific context of use claims where the only novel feature lay in the purpose of the use. The Enlarged Board discussed the difference between a purpose having a technical effect, and a purpose that merely existed in the mind of the person carrying out the invention, and was therefore subjective rather than objective. While the former conferred novelty on the known use, the latter did not. The Enlarged Board of Appeal did not consider whether objectively distinguishing features involving non-technical aspects, for example computer-implemented method steps, could establish novelty over, say, a computer.

3.4 In T 172/03, the Board stated that the patentability of an invention, for which inventive step was a requirement, had to arise from features and aspects of the invention from which a technical solution to a technical problem could be inferred and which were thus of technical character (point 3).

This statement seems to suggest that novelty, which is also a patentability requirement, can be based only on technical features.

(…)

Nevertheless, the case in T 172/03 was decided on inventive step (Article 56 EPC). The Board did not elaborate further on the question of “technical novelty”.

3.5 In T 154/04, the Board summarized the case law on computer-implemented inventions. It was said that non-technical features “as such” did not provide a technical contribution to the prior art and were thus to be ignored in the assessment of novelty and inventive step (point 5(f)). However, also in T 154/04, the case was decided on other grounds than novelty.

Hence, the Board concluded that none of the three decisions could support the approach of the examining division with respect to disregarding non-technical features for the assessment of novelty. Unfortunately, the Board did not decide on this issue due to potential implications on other aspects of the EPC and, as outlined above, applied the well-established COMVIK approach to reject the application based on lack of inventive step:

3.6 The question of “technical novelty” is complex, and has potential implications on many areas of patent law, such as the assessment of the same invention in Article 87 EPC, as well as added matter under Articles 76 and 123(2) EPC.

In the present case, the Board does not need to decide on this issue, because the notorious computer system is clearly prior art under Article 54(2) EPC. Therefore, the case can be decided on inventive step.

More information

You can read the whole decision here: T 0552/14 (Queue message/TICKETMASTER) of 12.1.2021

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Zoom bounce-back effect on a touchscreen: technical

This case is interesting for UX designers. The basic question was whether a particular type of touch gesture to control the device is technical. The decision is one of the rarer cases where a “continued and/or guided human-machine interaction” was acknowledged. 

Here are the practical takeaways from the decision T 2004/17 (Zooming on touch screen/APPLE) of 10.12.2020 of Technical Board of Appeal 3.5.05:

Key takeaways

Providing continuous feedback to the user, in that there is an uninterrupted response to the user’s continued touch, and indicating an internal state of the device to the user, namely that it has reached the maximum zoom-in level for persistent display, is a technical effect.

The invention

This European patent application concerns touch gestures for scaling documents on a touchscreen.

According to the description, as portable electronic devices become more compact it has become challenging to design a user interface that allows users to easily interact with a multifunction device, especially devices with smaller screens.

For example, frequently only a portion of an electronic document can be displayed on the screen at a given time, and users have to scale (i.e. magnify or de-magnify) the displayed document. But according to the application, the limitations of conventional user interfaces can cause these actions to be awkward to perform.

The aim of the claimed invention was hence to provide for easy and intuitive scaling of electronic documents on a device with a touchscreen display.

Fig. 13B of EP 2 402 851
Fig. 13B of EP 2 402 851

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the patent application for lack of inventive step of the main request. The applicant pursued the same main request on the appeal.

On the appeal stage, the board considered the difference of claim 1 over the closest prior art to be that a respective portion of the electronic document is displayed at a predefined magnification if, upon detecting termination of the gesture, the magnification exceeds the predefined magnification.

The board interpreted this difference as follows:

In other words, the zoom-in level reached during the user’s gesture does not persist, upon termination of the user’s gesture, if this zoom-in level exceeds a threshold value; instead, the document is then displayed at a zoom-in level equal to this threshold value.

This was different from how this situation was handled in the prior art:

In contrast, D3 implements a hard stop, wherein if a maximum zoom-in level is reached during the gesture, the zooming-in action is stopped during the gesture and the document is persistently displayed at this maximum zoom-in level even if the user’s gesture is continued.

The question was then, of course, whether this difference was a technical one. The board took the position that it was:

The technical effect of this distinguishing feature is that feedback is provided continuously to the user, in that there is an uninterrupted response to the user’s continued touch, and that an internal state of the device, namely that it has reached the maximum zoom-in level for persistent display, is indicated to the user by providing the zoom bounce-back effect. In contrast, the device of D3 does not respond to the user’s gesture when the hard stop is reached, and the user does not know whether the fact that zooming has stopped is due to a malfunction of the device or not.

The objective technical problem can thus be formulated as how to indicate to the user that the maximum allowable persistent zoom-in level has been reached while providing continuous visual feedback to indicate that the device is responding to the user’s gesture.

Being a technical feature, the remaining question was then whether it would have been obvious for the skilled person to provide the claimed zoom bounce-back feature:

Nothing in D3 itself prompts the skilled person to provide an over-zooming feature and a zoom bounce-back feature as defined in claim 1.

Nor would the skilled person be prompted to look at D2, since this document does not disclose a touch-screen display wherein continuous zooming in a document is performed by a user’s continuous gesture. There is thus no disclosure in D2 of over-zooming and zoom bounce-back in response to a user’s gesture.

Moreover, the appellant argued persuasively that in D3 the absence of feedback when the hard stop is reached may confuse the user, who may then repeatedly attempt to perform the zoom-in gesture without receiving any response before understanding that the document cannot be viewed at a greater zoom level. In contrast, the zoom bounce-back in claim 1 definitely provides clear feedback that the maximum zoom level has been reached and that no additional input is required.

Therefore, the board held that claim 1 involved an inventive step.

The appealed decision was set aside and the case was remitted to the first instance with the order to grant a patent.

More information

You can read the whole decision here: T 2004/17 (Zooming on touch screen/APPLE) of 10.12.2020

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Determining a threshold of operational parameters of a nuclear reactor: technical

This case is already a few years old but relates to one of the hottest current topics: the patentability of computer simulations. The overall question was whether the purpose of the simulation and the nature of the processed data confer technical character to a method. 

Here are the practical takeaways from the decision T 0625/11 () of 19.1.2017 of Technical Board of Appeal 3.4.01:

Key takeaways

The determination, as a threshold value, of the value of the first operating parameter confers a technical character on the claim, this technical character exceeding the simple interaction between the numerical simulation algorithm and the computer system. The nature of the parameter is, in fact, intimately linked to the operation of a nuclear reactor, whether this parameter is actually used within a nuclear reactor or not.

The invention

This European patent application generally concerns the simulation of the operation of a nuclear reactor.

According to the description, it is desirable to operate nuclear reactors at reduced power when demand on the network is low, before reverting to nominal power, as necessary. But such use of a nuclear reactor, which would allow its capabilities to be better used, should not result in safety problems.

An objective of the invention was therefore to provide a method which allows at least one threshold value of an operational parameter of a nuclear reactor to be established, allowing the capabilities of the reactor to be better used, while maintaining safe operation of the reactor.

Fig. 1 of EP1556870A1
Fig. 1 of EP1556870A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the patent application for lack of inventive step. The main argument was that the only technical feature was the computer implementation of the method, whereas the various steps of the claimed process had no effect on a technical subject, being limited to the calculation of a value.

On the appeal stage, first of all the board made clear that all of the steps of claim 1 are undoubtedly carried out by the computer system mentioned in the claim. Accordingly, patent-eligibility was no issue.

The board then went on to contrast “two approaches” in the context of inventive step with each other:

According to the “first approach”, the computer-implementation was considered to be the only technical aspect of claim 1, but not the actual simulation performed by the method. The board noted that if this approach was adopted, it would have been obvious to implement the excluded method on a standard computer system (the citations are translated from the French original):

7.2.4 … Failure to take into account the nature of the data processed or the aim pursued by the claimed method, according to the hypothesis retained above under the first approach, would then lead to the finding that the object of claim 1 of the main request is not inventive within the meaning of Article 56 EPC.

Accordingly, the board found that there would be a lack of inventive step if the nature of the processed data and the purpose of the claimed method was disregarded as non-technical.

The “second approach” was of course pursued by the appellant and relied, among others, on T 1227/05 (OJ EPO 2007, 574) and T 471/05. Accordingly, the board noted:

7.3.2 … In the present circumstances, the recognition of a technical nature linked to the use of the threshold value resulting from the simulation of an effective operation of a nuclear reactor would lead to a significantly more specific redefinition of the objective technical problem solved by the invention. Contrary to what the approach based on the sole use of technical means implies, the aspects linked to the operation of the nuclear reactor would then have a role to play in defining the objective problem to be solved. Likewise, the recognition of a technical nature inherent in the data taken into account within the framework of the simulation, would also lead to a necessary reformulation of the problem to be solved.

In the present case, the definition of the technical problem adopted by the applicant appears realistic. The invention would aim at determining at least one limit value of an operating parameter of a nuclear reactor in order to allow better use of the latter’s capacities.

In the context of this approach, the board notes that none of the documents cited against the request offers the claimed solution.

Of course, the question was then which approach was the correct one. After a detailed comparison of existing case law, the board followed the approach taken in T 1227/05:

In agreement with the appellant, the Board considers, in the present case, that the question before it is, in principle, identical to the question which arose in Board 3.5.01 in T 1227/05. In the present case, the Board is also convinced that steps b), c) and d) of the claimed process serve the stated objective of determining an operating limit value for the nuclear reactor.

Accordingly, the board ultimately adopted the “second approach”:

8.4 At the end of the deliberation of the board, the latter came to the conclusion that the determination, as a threshold value, of the value of the first operating parameter conferred a technical character on the claim, this technical character exceeding the simple interaction between the numerical simulation algorithm and the computer system. The nature of the parameter thus identified is, in fact, intimately linked to the operation of a nuclear reactor, whether this parameter is actually used within a nuclear reactor or not. In doing so, the board recognizes the relevance of the analysis developed in case T 1227/05 which it takes up for itself. Likewise, in the opinion of the board, this finding leads to retain the analysis developed above (cf. point 7) under the second possible approach and therefore to conclude that the subject of claim 1 according to the main request is inventive within the meaning of Article 56 EPC 1973.

Therefore, the appealed decision was set aside and the case was remitted to the first instance with the order to grant a patent.

More information

You can read the whole decision here: T 0625/11 () of 19.1.2017

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Centralized vs. distributed gaming system: technical (but obvious)

In this case, the Board of Appeal had to decide whether the shifting from a distributed gaming system to a more centralised architecture involves an inventive step. Here are the practical takeaways from the decision T 0683/17 of 3.12.2020 of Technical Board of Appeal 3.4.03:

Key takeaways

The skilled person (a computer programming expert in gaming/betting systems) is aware of the advantages and disadvantages of a particular distribution of known functionalities in a centralised computer system as part of their common general knowledge.

The invention

This European patent application concerns a roulette betting system and a method for playing a modified version of roulette.

The betting system includes a central server system which comunicates over the Internet with one or more electronic roulette gaming areas. The central server system includes a series of servers carrying out various operations (a draw server with a random number generator to “spin” the electronic roulette, a database server, a bet acceptance server, an authentication server and a table management server.

The electronic roulette gaming area includes a central table including an electronic representation of a roulette wheel and electronic user interfaces (clients) for each player, such that the players can place their bets and follow the game. An embodiment is shown in Fig. 4:

Fig. 4 of EP 2 811 472
Fig. 4 of EP 2 811 472

The modified roulette game consists in a series of roulette spins. After each spin the drawn number is removed from the game and replaced by a randomly selected number among the remaining numbers. After each round the odds of the game are calculated anew before the players can place bets.

But the roulette modification is less important in this case because the apparatus claims of the main request refer only to a central server system without any details about the actual modified roulette game.

More precisely, here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

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

On the appeal, the board started its inventive-step assessment from a document (D5) which describes a roulette betting system comprising a remote central server and a table with an electronic display of a roulette wheel.

According to the board, the only difference between this system and the claimed one was the distribution of the various components:

3.3 Comparing the claimed system to the one in D5, the only differences relate to the distributed system architecture. In claim 1 of the Main Request a series of servers (database server, draw server, etc.) are defined, which are implemented within the central server system and carry out the various functionalities of the claimed betting system. In D5, the same functionalities are distributed between the central controller and the table(s). In addition, in D5 there is no mention of separate servers as in the claimed system, but rather of controllers and programs (instructions) executed in the central controller.

3.4 The claimed system has, thus, a more centralised architecture, since the various functionalities are implemented at the central server system and none of them locally, at the gaming table(s) or areas.

The question whether this difference contributes to the technical character of the invention was not even raised by the board. The board thus immediately spend thoughts on whether the shift in architecture was obvious:

3.4 […] The board considers such an architecture of a centralised computer system generally known in the art. Its advantages and disadvantages with respect to a distributed architecture are also commonly known. It is known, for example, that a system whose operation is controlled centrally can be more flexible in that additional peripherals (gaming areas in the present context) can be added more easily, since all the necessary functionalities are controlled/carried out by/at the central server. Costs can be also saved in that the peripherals do not need to have the necessary resources to carry out functionalities which are executed by/at the central server. A centralised server can also control better the security of the whole network. On the other hand, it is also known that in a distributed implementation, with various functionalities carried out at/by (some of) the peripheral devices, technical problems (malfunctions) can be treated locally at the device (peripheral) where they occur without risking the operation of the whole system. Hence, when, for example, the “spinning” of the virtual wheel does not operate correctly at a table, only the table manager of the specific table has to be repaired, while the other tables can continue playing normally.

The board further noted that D5 provided some indication about a possible centralised implementation of the system, where the description stated explicitly that “[t]he controller 108 may be programmed to perform any or all of the functions described herein …” and “[i]t is particularly contemplated that the table 34 may be a thin client controlled by the controller 108 …”.

3.8 In the board’s view, such hints would be sufficient for the skilled person to contemplate a centralised implementation of the described system in D5, where the various functionalities are carried out by the central controller. Moreover, the board considers that the skilled person (a computer programming expert in gaming/betting systems) would be aware of the advantages and disadvantages of a particular distribution of known functionalities in a centralised computer system as part of their common general knowledge (see point 3.4 above).

3.9 The board is, therefore, convinced that the skilled person would select between a centralised and a distributed implementation of the various functionalities of the gaming system in an obvious manner, based on the circumstances and using only common general knowledge.

Accordingly, the board concluded that claim 1 of the main request did not involve an inventive step. Since the auxiliary requests were not admitted, the appeal was dismissed.

More information

You can read the whole decision here: T 0683/17 of 3.12.2020

On 26 January 2021 at 20:00 CET we will host an event on Clubhouse👋 where we can casually discuss the decision. Feel invited to stop by!

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Illustrations on a scale carrying cognitive content: technical

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

Key takeaways

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

The invention

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

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

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

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

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

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

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

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

More information

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

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An objective approach to the assessment of inventive step for computer-implemented inventions (RICOH case)

This is an important decision when it comes to the patentability of software. 

On the merits, the European Patent Office revoked a software patent for order management with the decision T 0172/03 (Order management/RICOH) of 27.11.2003 of Technical Board of Appeal 3.5.01. Here are the practical takeaways from the decision:

Catchword

The RICOH case provides an objective approach to the assessment of inventive step for computer-implemented inventions. It teaches to identify first the claimed features which define the non-technical part of the invention, and then to identify the claimed features that are clearly technical.

The invention

This European patent application concerns an order management system and method for automatically placing an order for particular expendable supplies based on order information input from each department or section of a user of the system. Expendable supplies or parts are such as copy papers or toner cartridge used in an office.

The aim of the solution is to provide an order management system and method which can unitarily and automatically manage ordering processes based on order information supplied by each department or section.

Fig. 1 of EP 0 767 436

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step.

According to the reasons given in its decision, the regime of patentable subject-matter was only entered with the design and programming of the computerized system for implementing the improved order placing mechanism. The examining division considered such an implementation obvious, taking into account that the relevant skilled person was a computer science expert, actually a team comprising a business expert and a programmer, who had the knowledge of the economic concept and structure of the improved order placing mechanism.

On appeal, the board gave a nice summary on relevant case law and practice of the EPO for assessing inventive step.

3. According to the case law and practice of the EPO, the patentability of an invention, for which inventive step is a requirement, must arise from features and aspects of the invention from which a technical solution to a technical problem can be inferred and which are thus of a technical character (see, for example, the PBS-decision (T 931/95) and the COMVIK decision (T 641/00 – Two identities/COMVIK, OJ EPO 2003, 352), points 2 and 3, respectively).

In the case of a mixed-type invention (including non- technical aspects), examination for patentability normally requires an analysis of the invention and the construction of the claims to determine the technical content of the claims as a prerequisite step (see, in respect of inventive step, the COMVIK and PBS decisions, points 7 and 8, respectively). The required analysis of claim features is possible only ex post facto, i.e. in knowledge of the patent application and the invention to which it relates.

The appellant objected inter alia that the examination approach in this decision was based on a fictitious kind of prior art and unlawful ex post facto considerations.

According to the board:

5. …the prerequisite step of determining the technical features and aspects of a mixed-type invention is not part of the prior art analysis. Certainly, an ex post facto knowledge of the patent application and the claimed invention cannot be avoided completely in judging inventive step; what should strictly be avoided are retrospective considerations and conclusions in evaluating the technical contribution the invention provides to the relevant prior art (see decision T 967/97 – Chipkarte/OVD KINEGRAM AG, not published in OJ EPO, point 3.3).

Furthermore, the board gave definition for the term “person skilled in the art”

6. …According to the COMVIK decision, point 8, the “skilled person will be an expert in a technical field”. The decision goes on to state: “If the technical problem is concerned with a computer implementation of a business, actuarial or accountancy system, the skilled person will be someone skilled in data processing, and not merely a businessman, actuary or accountant.”

7. Indeed, Article 18 EPC determines that an examining division in principle consists of three technically qualified examiners. The examining division is thus, due to its composition, neither professionally competent to evaluate the state of “non-technological art” nor to assess innovations in a non-technological field. It would be inconsistent with the terms and objects of the EPC to attribute an essentially different professional competence to the “person skilled in the art” within the meaning of Article 56 EPC, for example by construing this term to include business experts or practitioners in other non-technological fields. Even if there may be borderline areas, like system analysis and design which are based on rather abstract and intellectual activities but nevertheless provide important results for developing complex software systems (see decision T 49/99-Information modelling/INTERNATIONAL COMPUTERS, not published in OJ EPO, point 7), this should not divert from the principle that the skilled person within the meaning of Article 56 EPC is a technical expert, professional or practitioner.

In the present case, the board defined the relevant “person skilled in the art” as a software project team. It does not include any business expert, but it has knowledge of the business-related features and aspects of the order management method, in the kind of a requirements specification, as part of the formulation of the technical problem to be solved.

The board also gave definition for the term “state of the art”

8. …as explained in the COMVIK decision, point 2, the term “state of the art” in Article 54 EPC should, in compliance with the French and German text, be understood as “state of technology”, which in the context of the EPC does not include the state of the art in commerce and business methods.

9. The term “state of the art” should be interpreted in its legal context, and in the light of the object and purpose of the patentability requirements of the EPC.

In the present case, the board considered the closest prior art to be a distributed information system comprising multiple general purpose computers at different locations and connected by a communication network as known and in use in a vast number of companies for office automation well before the priority year 1995.

As a summary, the board considered that the claimed invention was distinguished from a normal distributed information system only in terms of functional features and data structures for implementing the essentially business-related features of the order management method. The claimed technical solution did not go beyond the concept of a mere automation of constraints imposed by the business-related aspects, such automation using conventional hardware and programming methods being considered obvious to the skilled person. Therefore, the European patent application was invoked for lack of inventive step.

You can read the whole decision here: T 0172/03 (Order management/RICOH) of 27.11.2003

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