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Viewing and recording program content: non-technical

This decision relates to a European patent application directed to viewing and recording program content. Here are the practical takeaways from the decision T 2386/17 () of 20.7.2022 of Technical Board of Appeal 3.5.04:

Key takeaways

Any aspects based on the subjective interests, personal preferences and (business/commercial) activities or circumstances of the user are non-technical in nature.

Allowing the user to state their preferences on which segments of a programme should be recorded based on the type of programme is non-technical because it is essentially based on commercial and psychological considerations.

The invention

The invention relates to a method of recording segments of programming content comprising a live transmission, such as a sporting event. Transmitted start triggers indicate the start time of programming content and segment triggers indicate the start time of segments of the programming content. The recording of segments is based on user preferences on a type of live segment to be recorded and a type of preceding live segment to be recorded.

EP2410736

Figure 5 of EP2410736

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

WO 03/093965 A1 (cited as D4) was considered as the closest prior art.

According to the Board, the method of claim 1 differs from that of D4 by the following distinguishing features:

(a) a particular segment is recorded “based on a first user preference indicating a type of live segment to be recorded”;

(b) “in response to a determination to record the particular segment, recording, based on a second user preference indicating a type of preceding live segment to be recorded with the type of live segment to be recorded, another segment preceding the particular segment, wherein the recording the another segment comprises transferring the another segment from a buffer to a record memory”.

However, the Board concluded that the distinguishing features do not involve an inventive step. Here are the Board’s main considerations:

Objective technical problem

6.1 It is established case law of the boards that any aspects based on the subjective interests, personal preferences and (business/commercial) activities or circumstances of the user are non-technical in nature (see decisions T 478/06, point 6 of the Reasons and T 972/07, point 6 of the Reasons).

6.2 Distinguishing features (a) and (b) allow a user to set preferences such that a live programme segment of a certain type (e.g. sports) and a preceding segment are automatically recorded.

6.3 In the board’s view, allowing the user to state their preferences on which segments of a programme should be recorded based on the type of programme is non-technical because it is essentially based on commercial and psychological considerations, i.e. on making a product more attractive to the user and in creating an effect in the user’s mind. Technical aspects only come into play with the technical implementation of such a non-technical idea.

6.4 In line with the “COMVIK approach” established by the case law of the boards, if the problem is based on a mix of technical and non-technical considerations, the objective technical problem may have to be formulated by including the non-technical aspects, whether novel or not, as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met (see decision T 641/00 “Two identities/COMVIK“, OJ EPO 2003, 352, point 5 ff of the Reasons; decision T 154/04, OJ EPO 2008, 46, point 16 of the Reasons; opinion G 3/08, OJ EPO 2011, 10, point 10.13.2 of the Reasons; decision G 1/19, OJ EPO 2021, A77, points 30 to 34 of the Reasons and Case Law of the Boards of Appeal of the EPO, 9th edition, July 2019, I.D.9.1.4).

6.5 In the current case, the board thus considers that the objective technical problem should be formulated as how to allow a user to set preferences such that a live programme segment of a certain type (e.g. sports) and a preceding segment are automatically recorded.

Obviousness

7.1 The board considers that starting from D4 and faced with the above objective technical problem, the skilled person would immediately have realised that the user had to be allowed to state their preferences, for instance, via a user interface, as was well known in the art. The skilled person would also have realised that a technical problem had to be overcome in that the preceding live segment might have already started being received when start triggers for an incoming live segment were received (see the example on page 34, lines 3 to 7, according to which two start triggers are received 15 and 5 seconds prior to the start of a segment, i.e. shortly before the segment itself, and likely after the preceding segment has already started). In the board’s view, the solution to this problem would have been straightforward to the skilled person: to use a circular buffer to store received segments for long enough so that they are still stored in the buffer when start triggers for the next segment are received. Such a circular buffer for buffering incoming broadcast programmes was well known in the art (see, for instance, paragraphs [0049] and [0226] of D3).

Hence the skilled person would have arrived at the distinguishing features of claim 1 without any inventive activity.

Hence, the Board decided that the subject-matter of claim 1 of the main request does not involve an inventive step (Article 56 EPC) in view of document D4 and the skilled person’s common general knowledge.

Since none of the auxiliary requests could overcome this issue, the European patent application was finally refused.

 

More information

You can read the whole decision here: T 2386/17 () of 20.7.2022 of Technical Board of Appeal 3.5.04.

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Randomly selecting a number of game results for which dynamic raised odds are respectively generated: non-technical

The application underlying the present decision relates to a gambling game system that provides additional awards. However, the European Patent Office refused to grant a patent since the the first distinguishing features of claim 1 would be rendered obvious, whereas the second distinguishing features would fail to provide a technical effect. Here are the practical takeaways of the decision T 1497/19 () of May 18, 2022 of Technical Board of Appeal 3.4.03:

Key takeaways

Rules for playing a game cannot contribute to an inventive step within the meaning of Articles 52(1) EPC in combination with Article 52(2)(c) EPC.

The invention

In the Abstract of the application, the invention is described as follows:

The invention refers to a gambling game system providing additional awards aims to increase the odds thereof. The gambling game system includes a central control unit to receive game results generated by a game result generation device, players’ betting received by a betting table and dynamic raised odds generated by a dynamic raised odds calculation element. After the betting is stopped in each round of game, the dynamic raised odds are output to an electronic display board to be displayed instantly and respectively on a plurality of display zones, and the game results, the players’ betting and the dynamic raised odds are transmitted to a payout element. The payout element pays out to the players who win the betting in one round of the game according to the payout odds or the dynamic raised odds which are at higher priority, so that the players can expect to get extra awards, and the appeal of the gambling game system is higher to further increase utilization of the gambling game system (cf. EP 2 899 701 A1, Abstract).

Fig. 1 of EP 2 899 701 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (main request)

Is it technical?

As a first step, the Board in charge determined the following two distinguishing features, which are not disclosed by the closest prior art document D1:

The subject-matter defined in claim 1 differs from the gambling game system known from document D1 by the following two distinguishing features:

– the use of a touch screen and

– the random selection of a specific number of game results for which dynamic raised odds are respectively generated / selected.

According to the Board, the two distinguishing features do not produce a synergistic effect. Hence, both features do not have to be considered together but it is enough to show that each of the two features is individually obvious.

Concerning the first distinguishing feature, the Board found that it relates to a straightforward non-inventive design option:

2.3.1 The first distinguishing feature solves the problem of how to efficiently realise the input panel. It concerns a well-known, straightforward design choice which cannot provide an inventive contribution. Document D1 even hints at this realisation in figures 3, 5 and 7, all of which show versions of the game table display on the electronic screen on which interaction with the players or bankers is possible. The shown screens include user-interaction buttons inside/on the display, i.e., the cash out, redo bet, cancel, help buttons in the lower line or lower right corner of each of these figures. The realisation of these buttons is not further specified in document D1. However, the skilled person would have been aware of the two most obvious realisations: either in form of physical buttons or in form of a touch screen. Hence, the implementation using a touch screen represents one obvious choice out of the limited number of two possible choices. This feature does not provide any inventive contribution over the prior art.

With respect to the second distinguishing feature, the Board found that it would only relate to game rules. Hence, this feature was considered non-technical and therefore cannot contribute to inventive step.

2.3.2 The second distinguishing feature concerns rules for playing a game and as such does not contribute to an inventive step within the meaning of Articles 52(1) EPC in combination with Article 52(2)(c) EPC, because it relates to a non-technical feature. The claim’s overall technicality is not questioned, but the technical contribution of the second distinguishing feature resides only in the standard automation and implementation of a non-technical rule, namely a specific gaming rule in the gambling game system. The specific gaming rule concerns the choice of how the dynamic raised odds are to be calculated or determined. It is consequently a non-technical rule selected by the game designer. It also offers no further technical advantage nor produces a further technical effect, as it is merely implemented into the gambling system in a straightforward manner by the software programmer. Hence, the second distinguishing feature cannot provide an inventive step, either, due to its missing technicality.

Against this background, the Board in charge dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1497/19 () of May 18, 2022

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Including a video recording option in advertisements: non-technical

This decision relates to a European patent application directed to targeted advertisements. Here are the practical takeaways from the decision T 2174/18 (Including a video recording option in advertisements/COMCAST) of 25.5.2022 of Technical Board of Appeal 3.5.01:

Key takeaways

Authentication is performed by different entities, however, this relates to a non-technical requirement.

Adding a service option to an advertisement is a known concept.

The invention

The invention relates to targeted advertisements which make users aware of entertainment content without them having to discover it themselves.

Figure 1 shows a “content page” (myCITY TIMES) from a “publisher” web server (www.pub.zzz) displayed in a web browser 100 on a user’s computer. It has an advertisement 102 from a third party ad “server” targeted at gardeners on behalf of a (video) “service provider” that offers the TV series “Gardening”. The basic idea of the invention is that the third party ad server determines that a user is a customer of the service provider and customises an advertisement by adding an “interactive control” of functionality offered by the service provider. Thus, the third party server can provide the above mentioned advertisement 102 with a “RECORD NOW!” button 103 which automatically configures digital recording of the series via a digital video recording service offered by the (video) service provider.

 

EP2533185A1

Figure 1 of EP 2 533 185 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (second auxiliary request)

Is it patentable?

US 2004/0215509 A1 (cited as D4) was considered as the closest prior art. The Board came to the conclusion that even the most limited second auxiliary request lacks inventive step (Article 56 EPC).

In detail, according to the Board, the distinguishing features over D4 can be broken down into two groups representing different aspects of the invention:

(A) Authentication aspect: The user authentication is not performed by the third party advertiser, but by the service provider.

(B) Service aspect: The service provider is a video service provider, the service is a digital video recording service and the interactive control enables to remotely control recording of a video program.

No synergistic relationship between (A) and (B)

The Board considered there is no synergistic relationship between (A) and (B):

2.7…Contrary to the appellant’s view, the ad server in claim 1 is neither authenticated to the service provider nor does it control the video recording service. The link to the service provider including a path associated with the ad server (see lines 7 to 9 in claim 1 and the example in paragraph [0025]) merely indicates a specific web page of the service provider’s web server. The Board can only assume that the reason for including this specific path is to inform the service provider which ad server is providing the ad. This is, however, part of the (business) agreement between the service provider and third party advertiser; the former needs to inform the latter which advertisements to customise and deliver to the user.

In view of the above, the Board considers that there is no synergistic relationship between (A) and (B). Their contribution to inventive step, therefore, has to be assessed separately and independently from each other.

Feature (A) would be non-technical 

2.4…In the Board’s view it is clear that D4 also discloses the key element of the invention, namely that this targeting is in addition to the conventional advertising service, as it is disclosed as “icing on the cake” (see paragraph [0025]).

In summary, both in D4 and the invention the ad server receives user authentication status information and, based thereon, serves a specific advertisement. Authentication is performed by different entities, however, as discussed further below, this relates to a non-technical requirement.

2.8 It is common ground that the effect of difference (A) is that user authentication data is not provided to outside parties such as the third party ad server – see paragraph [0025] of the application.

2.9 This, however, relates to data privacy, i.e. what information to share and not to share with third parties, and thus is not a technical matter (see e.g. T 1248/12 – Privacy preserving data mining/CROSSIX, reasons 3.2). Under the “Comvik approach” (T 641/00 – Two identities/COMVIK) it may legitimately be part of the problem to be solved, for example in the form of a requirement specification given to the skilled person to implement.

In the context of D4 this would mean that the list of cookies, for example authentication cookies for an online shop, is not shared with or collected by the ad server (see paragraphs [0009] and [0021]). As a consequence, the ad server could not itself authenticate a user (see paragraph [0022]) but would need to get this information from elsewhere. The only other party which could perform user authentication is the one in possession of the cookies, i.e. the online shop.

Thus, in this situation the steps as in claim 1, namely authenticating the user via the service provider, i.e. the online shop, and providing authentication status information to the ad server are inevitable. The latter might also include, depending on the business agreement, information as to which advertisements to serve.

The Board judges that the technical implementation of this authentication procedure, e.g. by sending an authentication cookie via a web page request to the service provider’s web server and using a specific path for indicating the originating ad server, would have been obvious to the skilled person, a web programmer.

Feature (B) would be obvious 

2.10 Regarding difference (B) the appellant argued that the specific control enabled the user to schedule the recording of a video program via a digital video recorder (set-top box) or a cloud service in a convenient and flexible way.

This raised the awareness of the user regarding the availability of video programs/content (see paragraph [0001] and [0002] of the application). Even though D1 disclosed a video recording service, it required the installation of a browser plug-in and was limited to set-top boxes.

2.11 Firstly, the Board notes that adding a service option to an advertisement is a known concept. For example, the advertisements in D4 include a link for online shopping (see paragraph [0017]).

Secondly, D1 discloses the recording functionality as far as it is claimed – see paragraphs [0029] to [0031] since claim 1 is not limited to a specific implementation regarding the control of the digital video recording service, e.g. the use of a cloud service.

Thus the Board judges that, when asked to implement such a service option, the skilled person would have turned to D1 and arrived at the claimed solution without inventive effort.

Since claim 1 of the main and first auxiliary requests is broader than claim 1 of the second auxiliary request, they were found to lack inventive step for the same reasons (Article 56 EPC). Hence, the European patent application was finally refused.

 

More information

You can read the whole decision here: T 2174/18 (Including a video recording option in advertisements/COMCAST) of 25.5.2022 of Technical Board of Appeal 3.5.01.

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Developing rod patterns in nuclear reactors based on a simulation: non-technical

The application underlying the present decision relates to developing rod patterns in nuclear reactors based on a simulation. However, the European Patent Office refused to grant a patent since the relevant features of claim 1 would not produce a technical effect. Here are the practical takeaways of the decision T 2660/18 (Developing rod patterns in nuclear reactors/GLOBAL NUCLEAR FUEL-AMERICAS) of December 7, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

A technical effect must be achieved over substantially the whole scope of the claimed invention.

The invention

The application underlying the present decision relates to determining rod pattern (or blade pattern) designs for a nuclear reactor core.

The description outlines the underlying problem as follows:

[0002] A core of a nuclear reactor such as boiling water reactor (BWR) or pressurized water reactor (PWR) has several hundred individual fuel bundles of fuel rods (BWR) or groups of fuel rods (PWR) that have different characteristics. These bundles (fuel rod groups) are preferably arranged so that interaction between rods within a fuel bundle (rod group), and between fuel bundles (fuel rod groups) satisfies all regulatory and reactor design constraints, including governmental and customer-specified constraints. Additional, the rod pattern design, e.g., the arrangement of control mechanisms such as control blades (BWR) or control rods (PWR) within the core must be determined so as to optimize core cycle energy. Core cycle energy is the amount of energy that a reactor core generates before the core needs to be refreshed with new fuel elements, such as is done at an outage.

[0006] A Nuclear Regulatory Commission (NRC) licensed core simulation program reads the resulting input file and outputs the results of the simulation to a text or binary file. A designer then evaluates the simulation output to determine if the design criteria has been met, and also to verify that no violations of margins to thermal limits have occurred. Failure to meet design criteria (i.e., violations of one or more limits) require a manual designer modification to the input file. Specifically, the designer would manually change one or more operation parameter and rerun the core simulation program. This process was repeated until a satisfactory rod pattern design was achieved.

[0007] This process is extremely time consuming. …

Fig. 4 of EP 1 435 626 A2

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (main request)

Is it technical?

First of all, the Board stated that the closest prior art document D1 fails to teach the following two features of claim 1:

7. The distinguishing features of claim 1 having regard to the disclosure of document D1 are thus:

(DF1) defining the sets of limits using a database server

(DF2) comparing the simulated results against the limits using a total objective function which is the sum of all individual constraint components defined by

OBJpar = MULTpar * (RESULTpar- CONSpar),

where CONS is a limit of the defined set of limits for a particular constraint parameter (par); RESULT is one of the simulation results for that particular constraint parameter and MULT is a multiplier for the constraint parameter.

However, both features would only refer to obvious measures.

In addition, more interestingly, the Board ruled that claim 1 also lacks an inventive step in view of a general-purpose computer. Against this assessment, the Appellant argued as follows:

15. The appellant argued that the technical effect was “reducing the time to design rods and doing so in a safe manner” and the “implicit use of the modified rods in the reactor that was simulated for operating the reactor safely within target operating and core performance value limits”. The technical effect resulted from a computer-based arrangement that provided “a way to efficiently develop a rod pattern design for a nuclear reactor, where the rod pattern design represented a control mechanism for operating the reactor”, as well as a “computer-based method for providing internal and external users the ability to quickly develop, simulate, modify and perfect a rod pattern design for (implicit) use in their reactor” (letter of 19 November 2021, pages 8 and 9).

However, the Board in charge explained that such an effect would not be produced by the distinguishing features:

15.1 The board does not see such an effect coming from the distinguishing features. Moreover, the same effects are achieved by the method disclosed in document D1 (see abstract: “The system is successfully demonstrated by generating control rod programming for the 2894-MW (thermal) Kuosheng nuclear power plant in Taiwan. The computing time is tremendously reduced compared to programs using mathematical methods.”).

Furthermore, to convince the Board, the Appellant referred to T 0625/11, cited in the G1/19 decision:

16. During the oral proceedings, the appellant also cited decision T 625/11. In case T 625/11, the board concluded that the determination, as a limit value, of the value of a first operating parameter conferred a technical character to the claim which went beyond the mere interaction between the numerical simulation algorithm and the computer system. The nature of the parameter thus identified was, in fact, “intimately linked to” the operation of a nuclear reactor, independently of whether the parameter was actually used in a nuclear reactor (T 625/11, Reasons 8.4).

However, contrary to the parameters used in T0625/11, in the Board’s view, the claimed limits might correspond to limits set by a human person or by an organization:

17.1 The limits are “limiting or target operating and core performance values for a specific reactor plant or core energy cycle”. They might correspond to limits set by an administrative authority such as the NRC mentioned in the application (page 2, second full paragraph).

Hence, the Board maintained its position that no technical effect is produced by the distinguishing features as no parameter is identified by the claimed method that is intimately linked to the operation of a nuclear reactor, as it is the case in the method according to T 0625/11:

18. The board is of the opinion that no technical effect is achieved by the method’s functionality as the method merely produces a test rod pattern (i.e. a fuel bundle configuration) design and data “indicative of limits that were violated by the proposed test rod pattern design during the simulation”.

19. Thus, contrary to case T 625/11, no parameter is identified that is “intimately linked to” the operation of a nuclear reactor.

Moreover, the rod pattern design and the limits cold both not be directly used in a reactor:

Although the method yields a rod pattern design and provides limits of core performance values for a reactor plant having this design, this rod pattern design and the limits cannot be used directly in a nuclear reactor system. The rod pattern would first need to be manufactured.

In addition, a rod pattern could also be used for study purposes and thus may be utilized in non-technical applications, and therefore, a technical effect would not be achieved over substantially the whole scope of the claimed invention (G 1/19, points 94 and 95):

Moreover, a rod pattern design appears to have non-technical uses such as for study purposes. These are “relevant uses other than the use with a technical device”, and therefore a technical effect is not achieved over substantially the whole scope of the claimed invention (G 1/19, points 94 and 95). In fact, the reactor for which the rod pattern was designed may not yet have been built and may never be built.

Hence, the present case would not be an exceptional case in which calculated effects achieved by a simulation could be considered as implied technical effects:

Hence, this is not an “exceptional case” in which calculated effects can be considered implied technical effects (see decision G 1/19, points 94, 95 and 128).

Since also the auxiliary requests were considered obvious, as a result, the appeal was dismissed due to lack of inventive step.

More information

You can read the whole decision here: T 2660/18 (Developing rod patterns in nuclear reactors/GLOBAL NUCLEAR FUEL-AMERICAS) of December 7, 2021

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Monitoring a manufacturing process in a textile plant: non-technical

This decision relates to a European patent directed to a method of monitoring a manufacturing process in a textile plant. In this case, the appellant was the opponent to a European patent. The opposition was rejected at the first instance, but the appellant (opponent) won the appeal proceedings and the European patent was eventually revoked. Here are the practical takeaways from the decision T 1313/17 () of 9.11.2021 by Technical Board of Appeal 3.2.06:

Key takeaways

Despite being non-technical as such, these features could still contribute to the invention’s technical character if they were to form the basis for a further technical use of the outcome of the claimed method

 

The invention

The patent provides a method to optimize a textile manufacturing process (213)  in a textile plant such as a spinning mill is applied when raw material (201) is processed in the manufacturing process in several processing steps (202, 203) into intermediate products and an end product (204) is produced.

Figure 2 of EP 2 352 867

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

E1 was taken as the closest prior art document. The Board considers that claim 1 is novel because E1 does not disclose features A1.4 (second part “linked in an index file”), A1.5, A1.6, A1.7a and A1.7b.

However, according to the Board, the distinguishing features, as compared to E1, are not of a technical nature, nor is a technical use of their results implicitly specified in the claim. Here are more details:

In summary, the subject-matter of claim 1 differs from the method described in E1 in that

– the measured parameters, which are stored in the database (A1.4, first part, known as such from E1, see the reasoning under novelty above, Reasons 2.2.2), are linked in an index file (A1.4, second part), further in that

– the data stored in the database are statistically evaluated (A1.5), and in that

– a parameter of the end product is determined by comparison of the data stored in the database with a predetermined parameter of the raw material (A1.6 and A1.7a), or in that the parameter of the raw material is determined by comparison of the data stored in the database with a predetermined parameter of the end product (A1.6 and A1.7b).

“Although claim 1 defines “a method for optimizing with regard to quality, productivity and/or profitability a manufacturing process in a textile plant”, it does not include a step relating to any such optimisation. By executing the method steps as defined in the claim, a parameter of the end product or of the raw material is determined. The parameter so determined might allow an algorithm (but just as well an experienced user) to select optimal parameters in the production process to achieve a set quality level. In other words, the determined parameter could or could not be used in a subsequent optimisation step by setting production parameters in a real manufacturing process, rendering the optimisation a potential and thus only optional step.

Furthermore, the Board sees the terminology used in features A1.4 to A1.6, relating to a database, an index file and a statistical evaluation, as implying the use of a computer.

The Board thus presently considers that claim 1 does actually not relate to a “method for optimizing […] a manufacturing process” but defines a computer-implemented method for prediction of parameters in the end product or necessary parameters of the raw material.

Using the COMVIK approach, the Board found that the features of the characterising portion of claim 1 are not of a technical nature. Nor do they appear to contribute to the technical character of the invention in the context of the implementation of the data processing. They relate to handling and evaluating the data in order to predict certain parameters on the basis of an empirical model.

Despite being non-technical as such, these features could still contribute to the invention’s technical character (and would thus have to be considered in the assessment of inventive step) if they were to form the basis for a further technical use of the outcome (in the present case: the “determined parameter”) of the claimed method (see G1/19, reasons 137).

As also stated in the same paragraph of G1/19, such further use has to be at least implicitly specified in the claim. This condition is not met if the data resulting from a claimed process has relevant uses other than the use with a technical device (G1/19, reasons 95).

In the present case, the Board presently considers that the potential use of the data stored in the database as well as the parameter determined by comparison of the data stored in the database is not limited to technical purposes. In particular, the determined parameter is not limited to an application in a subsequent optimisation of a manufacturing process in the physical reality. It could just as well be used for educational purposes or form the basis for purely economic considerations, such as the calculation of the costs of manufacture. Any technical effect resulting from applying the determined parameter in a subsequent manufacturing process may therefore be considered as a “downstream” effect which may or may not be caused by said determined parameter (see also G1/19, reasons 96).

Whenever the determined parameter is not subsequently used in connection with a manufacturing process in the physical reality, but used for other purposes as set out above or not used at all (which is considered by the Board to be covered by claim 1), the claimed method will not achieve a technical effect.”

In the end, the Board concluded that the method of claim 1 does not achieve a technical effect and hence does not solve a technical problem over the whole scope of the claim, thereby rendering the claimed method non-inventive. Since the auxiliary requests were also not allowable, the patent was eventually revoked.

More information

You can read the whole decision here: T 1313/17 () of 9.11.2021by Technical Board of Appeal 3.2.06.

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Estimating departure time: non-technical

This decision relates to a European patent application directed to a method of estimating the departure time when users have to leave their current location in order to arrive at the destination for a scheduled event on time. Here are the practical takeaways from the decision T 1636/18 (Estimating departure time/QUALCOMM) of 3.3.2022 of Technical Board of Appeal 3.5.01:

Key takeaways

An effect (a bonus effect) that is a mere consequence of a modified business scheme cannot contribute to the technical character of the subject-matter claimed.

Inherent effects are not enough to establish technical character. A “further” technical effect going beyond the normal effect of implementing something in a computer has to be achieved.

The invention

Looking at Figure 1 of the application, a user may populate a calendar module 112 with an event 114 at a specified location 116. A wireless device 110 may then calculate a departure time for this event by comparing its current location to the scheduled event location 116. If the two locations differ by more than a given threshold, the wireless device estimates the travel time from the current location to the event location. Finally, the device may determine a departure time from the estimated travel time and the scheduled event time and may generate an alert by comparing the departure time and the current time.

 

Figure 1 of EP 2 491 341 A1

Here is how the invention was defined in claim 1:

  • Claim 1 (main request with the appellant's numbering)

Is it patentable?

D4 (US 2007/0250257 A1) was considered by the Board in charge as a valid starting point for assessing inventive step and it was found that claim 1 differs by features 1.3 to 1.5.

Feature 1.3

Concerning feature 1.3, the appellant argued that network-provided time properly reflects the local time and results in more accurate departure alerts. The Board, however, considered that obtaining the current time from a network is one of several obvious choices (cf. decision, items 2.1 and 2.2).

Features 1.4 and 1.5

Concerning features 1.4 and 1.5, the appellant argued that not estimating the travel and departure times when the mobile device was near the destination achieved the technical effect of saving computational resources.

However, the Board was not convinced for the following reasons:

2.5 … Estimating travel times and generating departure alerts is known from D4. Features 1.4 and 1.5 merely specify a condition on when to perform (or not) these operations. In the Board’s view, this condition does not necessarily come from technical considerations, but may merely reflect subjective user preferences. Some users may prefer not to be disturbed by annoying notifications when they are close to their intended destination. Other users, however, may be unfamiliar with the neighborhood and may prefer to have such reminders.

Any energy efficiency, if indeed achieved, would be an inevitable bonus effect resulting from the straightforward implementation of these non-technical considerations. An effect that is a mere consequence of a modified business scheme cannot contribute to the technical character of the subject-matter claimed (see e.g. T 258/03 – Auction method/HITACHI, Headnote II).

2.6 Moreover, according to the jurisprudence of the boards of appeal, the technical character of a feature is independent of the prior art. Therefore, relative effects, such as reduced processing time, cannot be used to distinguish between technical and non-technical method steps. This is because it is always possible to conceive of a method that requires more computational resources (e.g. T 1227/05 – Circuit simulation/Infineon, point 3.2.5). Considering the relative amount of processing time as an indicator of technicality might render the same method both technical and non-technical depending on the chosen starting point in the prior art. Although features reducing the required computing resources might involve an inventive step, the assessment of inventive step presupposes that these features contribute to the technical character of the invention.

2.7 The appellant also argued during the written proceedings that since the method was carried out on a wireless device, and since it caused a change in this device, i.e. a necessary change in the computational resources by carrying out the method, a technical contribution had to be acknowledged.

2.8 However, these effects are inherent to any computer-implemented method. Inherent effects are not enough to establish technical character. A “further” technical effect going beyond the normal effect of implementing something in a computer has to be achieved. (G 3/08 – Programs for computers, point 13.5; T 1755/10 – Software structure/TRILOGY, point 6).

Features 1.4 and 1.5, however, do not achieve a “further” technical effect in the context of the claimed method.

In the end, the Board found that the subject-matter of claim 1 did not involve an inventive step within the meaning of Article 56 EPC. The auxiliary requests were also found to lack an inventive step. Hence, the European patent application was finally refused.

More information

You can read the whole decision here: T 1636/18 (Estimating departure time/QUALCOMM) of 3.3.2022 of Technical Board of Appeal 3.5.01.

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Publishing of addresses and programs: non-technical

The application underlying the present decision relates to a method of creating a generic wireless communication platform for user applications in an area of wireless communications. However, the European Patent Office refused to grant a patent since the relevant features of claim 1 would either be rendered obvious by the cited prior art or would only refer to non-technical aspects. Here are the practical takeaways of the decision T 0999/16 (Wireless communication platform/IQRF) of February 4, 2022 of Technical Board of Appeal 3.5.03:

Key takeaways

Activities depending on administrative considerations are non-technical and thus cannot contribute to inventive step.

The invention

According to EP 1 768 268 A2, the invention underlying the present decision relates to an arrangement of a module for wireless communication between electric or electronic equipment or systems, in high frequency bands at least in the range of 300 MHz to 2.60 GHz, particularly for home and office automation systems. Said electric or electronic equipment includes controls for electronics, and can be controlled or can provide data, for example a cordless thermometer. The invention also involves the method of controlling it and a method of creating generic platforms for user applications in the area of wireless communications with those modules (cf. EP 1 768 268 A2, para. [0001]).

Fig. 1 of EP 1 768 268 A2

Here is how the invention is defined by the limiting features of claim 1 of the main request:

  • Claim 1 (feature labeling introduced by the Board)

Is it technical?

First of all, the Board in charge determined the distinguishing features of the closest prior art document D1 as follows:

3.2.4 The subject-matter of claim 1 therefore differs from the disclosure of D1 in features D1, I, J, J1 and J2.

Then, the Board outlined that features D1, J, J1 and J2 are rendered-obvious by D1. Specifically with respect to feature I, which reads “the addresses and the method of selecting the individual services of the operating system are published”, the Board explained that it would refer to a non-technical activity and thus could not contribute to inventive step:

3.2.6 Re feature I: the “publishing” of addresses and programs is a non-technical activity, depending on administrative considerations, which therefore does not contribute to inventive step (cf. T 641/00, headnote I). In any event, the publication of a list of “memory addresses” of operating-system routines stored in a non-volatile memory, e.g. a ROM, to be called from user programs was a technique notoriously known already in the 1980s (e.g. “KERNAL” calls in the 8-bit computer Commodore C64). Hence, the skilled person would have readily considered this technique when implementing the “operating functions of the Real-time Operation System 210” (see D1, paragraph [0035]).

Notably, the Appellant did not contest this assessment and just presented generic arguments why the subject-matter of claim 1 would comprise an inventive step. However, the Board did not follow these arguments.

Against this background, at the end of the hearing, the appeal was dismissed due to lack of inventive step.

More information

You can read the whole decision here: T 0999/16 (Wireless communication platform/IQRF) of February 4, 2022

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Translating a predicted amount of electrical energy into fuel savings: non-technical

The application underlying the present decision relates to estimating the electrical energy production of a photovoltaic system of an aircraft. However, the European Patent Office refused to grant a patent since the relevant features of claim 1 would only refer to a simulation method that does not produce a technical effect. Here are the practical takeaways of the decision T 1035/18 (Estimating airborne photovoltaic energy production/BOEING) of November 2, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

Simulation accuracy might play a role in the assessment of inventive step only if the simulation contributes to the technical character of the invention.

The invention

The Board in charge summarized the invention underlying the present application as follows:

1.1 The invention is about estimating the electrical energy production of a photovoltaic system of an aircraft in flight (paragraph [0002] of the published application).

1.2 Looking at Figures 1 and 2, the method starts by estimating a first amount of solar irradiance 106 generated by the Sun 108 and received at a plurality of geographical points 104 as a function of time (feature [a]). Based on this, a second amount of solar irradiance received by an aircraft 110 travelling along a flight path 112 is determined. The flight path 112 includes a subset of the geographical points 104 and has a starting and an ending time … . Based on the solar irradiance on the aircraft, the amount of electrical energy produced by the photovoltaic system 200 on the aircraft 110 is predicted … .

Finally, the predicted amount of electrical energy is translated into estimated fuel savings.

Fig. 1 of EP 2 899 685 A1

Here is how the invention is defined in claim 1 of the ninth auxiliary request:

  • Claim 1 (Ninth auxiliary request)

Is it technical?

Since the ninth auxiliary request was considered to be the most concrete one, the Board based its assessment on this request.

During the first instance examination phase, it was found that the first three features of claim 1 would relate to a prediciation method that could be performed by purely mental or mathematical means:

2.3 The examining division held that steps [a] to [c] defined a prediction method at a high level of abstraction that could be performed by purely mental or mathematical means. This was in contrast to the case in T 1227/05 (Circuit Simulation/Infineon) where the deciding Board held that the simulation could not be performed purely by such means and provided for realistic prediction of the performance of a designed circuit.

Against this assessment, the Applicant/Appellant argued that a technical system is simulated by the prediction method. Hence, in view of T 1227/05 (Circuit Simulation/Infineon), the claimed method has to be considered technical. However, the Board in charge found that T 1227/05 is rendered moot in view of G1/19:

2.5 The Board considers that the question of whether or not the present case resembles that of T 1227/05 is moot in view of G 1/19, which supersedes T 1227/05. According to G 1/19, whether a simulation contributes to the technical character of the claimed subject-matter does not depend on the degree to which the simulation represents reality (point 111); nor does it depend on the technicality of the simulated system (point 120). What counts is whether the simulation contributes to the solution of a technical problem (point 120).

The Board then further found that the claimed simulation steps do not involve a technical character, since technicality in light of G 1/19 does not depend on the simulated system but on the further use of the data produced by the simulation:

2.6 It is common ground that steps [a] to [c] define a simulation method. The method produces calculated numerical data, i.e. a prediction of the amount of electrical energy produced by the photovoltaic system during multiple flight paths. The Board agrees with the examination division’s decision that these steps do not involve a technical effect.

2.7 Following the principles laid out in G 1/19, the Board considers that whether the simulation achieves a technical effect depends on the further use of these numerical data (G 1/19, point 124).

To counter this finding, the Appellant argued that the central point of the present case is whether the estimated fuel savings provide a technical effect:

2.7 … The appellant argued for such an effect on the basis of step [d], added during the appeal, which specifies a further use of the predicted amount of electrical energy, namely translating this amount into estimated fuel savings. The issue in the present case is, thus, whether the estimated fuel savings provide a technical effect.

However, the Board in charge was not convinced by this argument:

2.9 The Board is not convinced by this argument because estimating the fuel savings for a flight is a non-technical administrative activity.

Then, the Appellant presented to further arguments:

2.10 During the oral proceedings, the appellant argued that the estimated fuel savings implied a more precise estimation of the amount of fuel needed by the aircraft for a flight. This was a technical effect because refuelling the aircraft with the optimal amount of fuel would enable the aircraft to traverse the flight path more efficiently.

2.12 The appellant also argued during the oral proceedings that step [a] described an accurate model for predicting the solar irradiance at a plurality of geographical points. This, in turn, led to a more precise estimation of the fuel savings. According to point 111, second sentence, of G 1/19, the accuracy of a simulation might be taken into consideration in the assessment of inventive step.

However, also these arguments did not convince the Board:

2.11 The Board considers that although refuelling is a technical process, it is not a direct consequence of the estimated fuel savings but would only occur as a result of a human decision (see also G 1/19, point 123). Moreover, the estimated fuel savings can also be used for business decisions, such as whether the savings merit the production and installation of the photovoltaic system or whether they permit a reduction of the flight tickets’ prices. Hence, the estimations do not have an implied technical use that can be the basis for an implied technical effect (see also G 1/19, points 98, 128).

2.13 In the Board’s view, however, the simulation’s accuracy might play a role in the assessment of inventive step only if the simulation contributes to the technical character of the invention. In view of the above (points 2.8 to 2.11), the Board judges that the simulation does not contribute to the technical character of the invention. Hence, the simulation’s accuracy is irrelevant for the assessment of inventive step.

Against this background, the Board found that the features relating to the simulation are of non-technical nature and thus have to be ignored for the assessment of inventive step:

2.14 As features [a] to [d] do not contribute to the technical character of the invention, they can be legitimately incorporated into the technical problem solved, as constraints to be met (T 641/00). …

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

More information

You can read the whole decision here: T 1035/18 (Estimating airborne photovoltaic energy production/BOEING) of November 2, 2021

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Present, advertise and promote paint and other coating products: non-technical

The application underlying the present decision relates to a self-service terminal usable in stores that sell paints of different colours. However, the European Patent Office refused to grant a patent since claim 1 would only refer to the presentation of information. Here are the practical takeaways of the decision T 2849/18 of April 8, 2022 of Technical Board of Appeal 3.4.03:

Key takeaways

Features relating to the presentation of information are non-technical and thus cannot contribute to inventive step.

The invention

The Board in charge summarized the invention underlying the present application as follows:

1.1 The invention concerns a self-service terminal in a store selling paints of different colours. At such a terminal the customer can initiate a session using a paint sample card from a paint card display. The paint card represents a specific paint/colour and provides the terminal with information in order to create a session. The session simulates painting a chosen environment (e.g. a dining room) with the chosen paint/colour.

1.2 The alleged aim of the invention is to present, advertise and promote paint and other coating products in a retail environment and to provide product information to consumers and others (see page 1, second paragraph, of the application). This is e.g. achieved in that the colour application program suggests an additional colour coordinating with the selected colour. The location of the paint card (corresponding to the additional colour) in a paint card display is illustrated (“pinpointed”) in an image of the paint card display array.

Fig. 7 of WO 2011/140134 A2

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request - numbering added by the Board)

Is it technical?

At first, the Board in charge stated that it agrees with the examining division’s assessment that D1 forms the closest prior art for the claimed subject-matter. Then, the Board summarized the disclosure of D1 as follows:

2.2.1 In D1 a coded sample colour paint card is described as a “fabric or paint chip” mentioned e.g. in paragraph [0128]. D1 further discloses a colour card reader, where the colour is input via the “paint chip” card and the corresponding colour code is retrieved via a colour database. D1 does not explicitly discloses that the paint chips are stored in a “card display” device, where the cards are exposed and made available to the customers. Such a display is shown in D7 (paint chip panels 27, 28, 31, paragraphs [0048], [0049]).

According to the Board, D1 would fail to teach the following two features of claim 1 of the main request:

2.3.2 D1 does not disclose

(a) a paint sample card display device for displaying an array of coded paint sample cards (parts of Features (B), (C), and (D)) and

(b) a pinpoint location in the image of a paint sample card bearing a selected color from the plurality of additional colors (Feature (H)).

As a next step, the Board determined the technical effect of both distinguishing features:

2.4.1 Feature (a) has the technical effect of storing and displaying the paint sample cards.

2.4.2 The effect of distinguishing Feature (b) is that the customer can easily and intuitively retrieve a paint sample card in the display panel by indication of the place of the card in a scheme representing the whole array of paint sample cards.

The Appellant argued that feature (b) provides a technical effect because the used display array would be a technical entity:

2.4.3 The Appellant has argued that Feature (b) had a technical effect, because the display array was a technical entity and retrieving a paint sample card was a technical process. … Its technical task was to enable the user to locate easily the paint sample card in the paint sample card display.

However, the Board did not follow this line of argumentation and found that the feature in questions only relates to non-technical displaying of information, which thus cannot contribute to inventive step:

2.4.4 The Board however is of the opinion that displaying the information, where the paint card is located, refers to presentation of information (see Article 52(2)(d) EPC) as brought forward by the Examining Division in the summons to oral proceedings and in the impugned decision. Non-technical features within the meaning of Article 52(2)(d) EPC, i.e. features related to presentation of information, are allowed in the context of other technical features, but cannot contribute to inventive step. …

Therefore, the Board formulated the problem to be solved as follows:

2.5 The problem therefore may be defined as providing an easily usable storage device for the paint cards and implementing an image of the paint sample card array pinpointing the location in the image of a paint sample card.

Then, the Board argued that finding a solution to this problem would have been obvious to the skilled person:

2.6.1 Providing a display array for paint cards as taught by D7 (Fig. 1) is the most obvious way to present paint sample cards in order to make the cards both easily accessibly and visible.

2.6.2 The solution to the second part of the problem directly results from the problem formulation itself. No technical difficulties would be encountered by the skilled person having skills in software development. Hence, the implementation of an image of the paint sample card array pinpointing the location in the image of a paint sample card does not require any inventive skills and would be obvious for the skilled person.

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

More information

You can read the whole decision here: T 2849/18 of April 8, 2022

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Finding an alternative to placing packages in a mail room if no lockers were available: non-technical

This case may be interesting for everyone who is active in the area of logistics since the application underlying the present decision relates to delivering of parcels to consignees when an initial delivery attempt is unsuccessful. However, the European Patent Office refused to grant a patent since claim 1 allegedly solves the non-technical problem of finding an alternative to placing packages in a mail room if no lockers were available. Here are the practical takeaways of the decision T 1909/19 (Confirming identity at locker bank/UPC) of March 10, 2022 of Technical Board of Appeal 3.5.07:

Key takeaways

Features relating to mere business-related aspects cannot contribute to inventive step since they lack technicality.

The invention

The Board in charge summarized the invention underlying the present application as follows:

1. The invention concerns delivery of parcels to consignees when an initial delivery attempt is unsuccessful (see page 1, first text paragraph of the international publication).

1.1 The application discloses a system for facilitating delivery of parcels via a carrier (e.g. logistics company, courier, authorised agent) to alternate delivery locations in response to an unsuccessful delivery attempt to a primary delivery address (e.g. the intended parcel recipient’s residence). An alternate delivery location may be a locker bank comprising a plurality of secure lockers at any suitable location, such as at a stand-alone facility or another facility such as, for example, a retail store, a gas station or a pharmacy (page 2, last full paragraph, to page 3, second line).

1.3 In particular embodiments, as described on page 3, first full paragraph, when the driver representing a carrier arrives at a locker bank to deliver a parcel to the locker bank: (1) the driver indicates, via a system directly accessed at the locker location and/or via a portable computing device, that the parcel is to be delivered; (2) an appropriate locker is selected by the system or the driver, for instance based on a size of the parcel, time of day, type of package or special handling instructions for the parcel; (3) the driver places the parcel in the chosen locker; (4) the computer system associated with the locker bank sends an electronic notification to the parcel’s shipper, consignee, carrier and/or third party that the parcel is in the locker bank; and (5) the locker bank holds the parcel until it is retrieved from the locker, or until a predetermined amount of time passes.

Fig. 3 of WO 2015/057734 A2

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request - numbering added by the Board)

Is it technical?

As a first step, the Board in charge determined the distinguishing features of claim 1 over the closest prior art document D1:

7. It follows from the above that the subject-matter of claim 1 differs from the method of document D1 in that it includes features (b), (i.1) to (i.3) and the following feature:

(a”) at the logistics server, receiving from a mobile computing device a first indication that delivery of the one or more parcels is not possible at a primary delivery location.

Next, the Appellant argued the technical effect, specifically with respect to distinguishing feature (b) as follows:

8. The appellant argued that features (a), (b) and (c) had the technical effect of providing a method for delivery of a package to a recipient for automatic retrieval …

From this, the Appellant formulated the technical problem:

8. … and solved the technical problem of finding an alternative to placing the packages in a mail room if no lockers were available.

However, the Board in charge did not agree and found that the distinguishing features would only concern non-technical requirements in terms of business considerations:

8. …

The board is however of the opinion that distinguishing features (a”) and (b) concern the non-technical requirement of giving preference to delivery of the one or more parcels to a primary delivery location before delivering to one of the locker banks and of selecting a suitable locker bank location based at least in part on the primary delivery location. The board notes that the choice of a delivery location can be based on non-technical business considerations and constraints or preferences of the recipient (such as a preference for a specific location for picking up the packet, e.g. a locker near the recipient’s residence or the workplace).

To convince the Board, the Appellant also argued a technical effect regarding the further distinguishing features (i), (i.1) to (i3):

9. The appellant argued that features (i), (i.1), (i.2), and (i.3) provided the technical effect of enabling a secure delivery of packages and solved the objective technical problem of providing a secure delivery at an alternative location. …

Notably, the Board left it open whether confirming the identity as defined by feature (i) is technical. However, such an implementation would have been obvious to the skilled person:

9.1 It is questionable whether the concept of confirming the identity of the individual on the basis of the individual’s location is technical. Its implementation using a computing device in the ways described in the application would have been obvious for the skilled person at the priority date of the present application, as the use of mobile devices with advanced location technology had already become ubiquitous, and location-based services were widely used.

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

More information

You can read the whole decision here: T 1909/19 (Confirming identity at locker bank/UPC) of March 10, 2022

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