Author Archive

Displaying a medical workflow: non-technical

The application underlying this decision relates to displaying a medical workflow. However, the European Patent Office refused to grant a patent since claim 1 mainly addresses the displaying of information in terms of a menu. Here are the practical takeaways of the decision T 1743/19 (Possible next actions/CAREFUSION303) of March 4, 2022 of Technical Board of Appeal 3.5.05:

Key takeaways

The mere presentation of information cannot contribute to the technical character of an invention.

The invention

The application underlying the present decision mainly concerns displaying changes in workflows performed by health care workers, like nurses etc. Since the order of tasks in a workflow may change, the present application suggests using predictions to be able to display the correct order of tasks within a workflow (cf. paras. [002] and [002] of the application).

Fig. 1 of WO 2011/087710 A2

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

Claim 1 (Main Request)

A method of adapting a medical workflow implemented at a processor coupled to a hospital network, comprising:

receiving a message comprising medical information data;

predicting a healthcare worker’s workflow using, at least in part, the medical information data; and

communicating to an interface, based on the predicting, a menu comprising one or more medical action options;

the method being characterized in that:

said predicting comprises using information related to past actions by the healthcare worker for predicting the healthcare worker’s workflow, and associating probabilities with actions possible by the healthcare worker; and

prioritizing display of possible next actions in the menu using the probability values associated with said actions.

Is it technical?

Both the Board in charge and the Appellant considered that the closest prior art document D2 fails to teach the characterizing portion of claim 1:

1.1 The appellant considers all the features in the characterising part of claim 1 of the main request to be distinguishing features over D2, which reads as follows:

“predicting comprises using information related to past actions by the healthcare worker for predicting the healthcare worker’s workflow, and associating probabilities with actions possible by the healthcare worker; and

prioritizing display of possible next actions in the menu using the probability values associated with said actions”

1.2 Whereas D2 predicts the next possible actions in a healthcare worker’s workflow based on known ordered activities or tasks (see D2, [0081] and [0082]), the claimed method predicts the next possible actions using the healthcare worker’s past actions, which the appellant emphasises in its submissions are “medical” past actions, and displays these actions in a menu prioritised according to their associated probabilities.

According to the Appellant, the distinguishing features would reduce errors and improve efficiency on the part of healthcare workers during the time in which healthcare workers became accustomed to upgrades or changes to existing healthcare configurations. Moreover, flexibility in conducting workflows would be improved:

1.3.1 The appellant argued that errors were reduced and efficiency increased on the part of healthcare workers during the time in which healthcare workers became accustomed to upgrades or changes to existing healthcare configurations. …

1.3.2 Referring to paragraph [0022] of the description, the appellant argued that the need for a healthcare worker to follow only a single specific sequence of actions was eliminated. It reiterated at the oral proceedings that the distinguishing features gave the healthcare worker more flexibility. …

However, the Board found that the distinguishing features would only relate to the presentation of information. To counter this, the Appellant argued that displaying information may contribute to the technical character under exceptional circumstances as follows:

1.3.5 In its letter of reply to the board’s preliminary opinion, the appellant argued that the menu according to claim 1 placed the user in a favourable position to carry out the technical task of selecting a next option from the menu guiding the user through a workflow and submitted that in previous decisions of the boards of appeal, a GUI placing the user in a favourable position to carry out a technical task had been regarded as technical. It is evident that the appellant was referring to the established test that a presentation of information might exceptionally contribute to the technical character of an invention if it credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process (see e.g. T 1091/17, point 1.7 of the Reasons). …

The Board did not follow this argument since selecting something from a menu would be a non-technical task:

1.3.5 … Nevertheless, the case at hand fails this test at the very outset since selecting from a menu is not a technical task, contrary to the appellant’s argument.

Thus, the Board in charge concluded that the distinguishing features of claim 1 are of non-technical nature:

1.4 Since the distinguishing features of claim 1 do not have any technical effect, they cannot solve any objective technical problem. Therefore, the subject-matter of claim 1 of the main request does not involve any inventive step (Article 56 EPC).

As a result, since non-technical features have to be ignored for assessing non-obviousness, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1743/19 (Possible next actions/CAREFUSION303) of March 4, 2022

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

www.bardehle.com/team/detail/heckeler-patrick.html

Managing the funding of catastrophe relief efforts: non-technical

The application underlying this decision relates to managing the funding of catastrophe relief efforts. However, the European Patent Office refused to grant a patent that mainly focuses on a payment method. Here are the practical takeaways of the decision T 0550/14 (Catastrophe relief/SWISS RE) of September 14, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

Business requirements given to the skilled person to implement are non-technical features.

The invention

The Board in charge summarized the invention as follows:

1.1 The invention is about managing the funding of catastrophe relief efforts caused by natural or man-made disasters, such as earthquakes, see page 1, first paragraph of the originally filed application. Conventionally, as can been from Fig. 2, charitable organisations 3 provide relief S9 in the event of a disaster from donations S1 from donors 2. Insurance companies might offer catastrophe insurance policies, but these may be too expensive or even unavailable for developing countries, so that the available relief may be insufficient.

1.2 The objective of the invention is to make sure that adequate funding is in place before the catastrophic event actually occurs and to pay out when it does.

1.3 The invention achieves this by providing a “special purpose entity” (“special purpose vehicle” in the claims) 1′ which offers a financial product S3 (e.g. a security, or another financial instrument) in return for a premium S2 from the charitable organisation (or donor directly), see page 2, last paragraph, to page 3, first paragraph.

1.4 Investors 4 back S4 the product and receive in return for their investment a payment of the premium S2 which is issued as a coupon S10 from the special purpose entity. If a catastrophic event occurs within a defined time period, the capital is paid S8 to the charitable organisation, otherwise the capital is paid back S11 to the investors who keep the premium for their efforts.

1.5 The “special purpose entity” collects information S6 about catastrophic events from an online provider 5, see page 7, lines 8 to 16. This information is provided in the form of a “parametric index” indicating the severity of catastrophic events, which serves as a triggering condition for whether and how much payout shall be made to the charitable organisation, see page 10, third paragraph. The “parametric index” is linked to geographical areas, the type of catastrophe and the severity of the catastrophic event (Table 1).

Fig. 2 of WO 2009/100546 A1

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

Claim 1 (Main Request)

1. A computer-implemented method for managing funding of catastrophe relief efforts associated with a special purpose vehicle (1′), wherein a donor makes a monetary donation to a charitable organization, the method comprising:

associating a computer system (1) with a special purpose vehicle (1′), which defines a corporate body to isolate financial risks, comprising at least a control module (10), a payment receiving module (12), a payment module (13), and a disaster information interface (14), wherein the control module (10), the payment receiving module (12), the payment module (13), and the disaster information interface (14) are realized as a functional module implemented partly or fully by means of hardware components;

receiving by means of the payment receiving module (12) of the computer system (1) of the special purpose vehicle (1′) a purchase request for catastrophe protection from a computer system (3) of a charitable organization via a telecommunication network (6), wherein the control module (12) provides a data interface accessible to the computer system (3) of the charitable organization for transmitting the purchase request to the computer system (1), wherein the transmitted (p.9,1.3-4) purchase request comprises data defining a premium payment and a specification of protection for specific catastrophes in a defined area;

creating and storing a data structure (11) representing a financial product for the purchase request for catastrophe protection by means of the control module (10) of the computer system (1), wherein the financial product is linked to the charitable organization and the specific catastrophes by means of the computer system (1), and wherein the data structure (11) comprises a product identifier, a product type, a contract duration, a monetary amount of protection for a defined premium an identification of a charitable organization, and a definition of the linked catastrophes;

defining the linked catastrophe by a type of catastrophe, a geographic area, a parametric index indicative of the severity of catastrophic events, and severity threshold values for triggering payout of the protection to the charitable organization by means of the data structure (11), wherein the severity threshold values comprise criteria for the intensity of the catastrophic event and/or population number affected by the catastrophic event;

receiving a payment of the premium assigned to the financial product by means of the payment receiving module (12) from the charitable organization, the premium corresponding to the monetary donation made to the charitable organization by the donor (2), wherein the charitable organization is assigned protection by means of defining the financial product;

receiving an investment request comprising a capital payment assigned to the financial product from one or more investors and the specification of the financial product and receiving the payment of capital for the financial product from the one or more investors, wherein the control module (12) provides a data interface accessible to the computer system (4) of the investor for transmitting the purchase request to the computer system (1), and wherein the capital payment is transmitted from the investor’s computer system (3) to the payment receiving module (12) via the telecommunication network (6);

retrieving and receiving catastrophic event information by means of the disaster information interface (14) of the computer system (1) from an information provider (5) in a periodic pull mode or in push mode provided by a the information provider (5) by means of a telecommunication module via telecommunication network (6);

triggering payment of capital to the charitable organization depending on the parametric index of the received catastrophic event information and the defined severity index threshold, wherein the payment module (13) of the computer system (1) is triggered to pay invested capital upon occurrence of a catastrophic event assigned to the financial product for refunding relief efforts for the catastrophic event, and wherein the amount paid depends on the parametric index comprising one or more geographic areas, selected type of catastrophe and/or severity of the catastrophic event,

paying, at the end of said contract duration, by means of a payment module (13) of the computer system (1) the premium paid by the charitable organization (3) from the special purpose entity as coupon to the investors (4), and repaying the invested capital to the investors (4), if no linked catastrophic event occurred within the contract duration of the financial product.

Is it technical?

According to the assessment of the Board in charge, the closest prior art for the claimed subject-matter is a common computer network and that claim 1 differs from such a network by all features relating to the claimed payout scheme:

2.7 The Board agrees with the division that a valid starting point is a networked computer system, comprising a control module and several functional modules. Such a “networked” system can be interconnected with other networked computers via a telecommunications network and not just be a stand-alone system, as argued by the appellant.

2.8 The invention therefore differs, as is usually the case starting from such prior art, by all the features of the relief payout scheme.

Then, the Board assessed whether the first instance examining division was correct in considering all the distinguishing features non-technical. As a result, the Board held the the examining division’s assessment was correct:

2.10 The Board agrees with the division that the features define a method for managing funding of catastrophe relief efforts. They represent the different parties involved, which are the donor, the charitable organisation, the investor and the information provider, as well as the monetary and information flow between them and the role each one plays. They are therefore part of the business requirements given to the skilled person to implement.

Contrary to the opinion of the Appellant, the Board also considered the claimed parametric trigger as non-technical:

2.11 … For instance, a catastrophe of a hurricane in the Caribbean, as shown in Table 1 on page 7, has the parametric trigger of wind speed, size of storm and location. In the Board’s view, determining this parametric information, the triggering criteria and the trigger level does not require any technical considerations. Furthermore, the business person would be aware that the relevant information would be available from providers for weather data and catastrophe information.

2.12 2.12 The Board therefore sees no need for the business person to have technical knowledge about networked computer systems in order to propose the business method of the invention. …

Finally, the Board held that implementing a business scheme as claimed would not pose any difficulties to the skilled person:

2.13 Finally, the Board cannot see any difficulties for the person skilled in the art of data processing to implement the business concept of the present invention on the networked computer system.

The Appellant did not agree and requested remitting the case back to the first instance to further discuss technicality of, for example, the parametric trigger as mentioned above:

3.1 … Moreover, if there were no arguments why certain features were deemed to be part of the business model, the right to be heard was not respected. In the present case, a more detailed discussion should have taken place about the feature “parametric trigger”, …

However, the Board held that in the present case it is clear that the features in questions are non-technical. Moreover, the Board considered that these features have already been sufficiently discussed in the first instance proceedings:

3.2 The Board agrees that in this field there is a danger of simply asserting that certain features are non-technical with no basis. Indeed, the Board has seen decisions where the reasoning has not been fully convincing. But this is not one of them. As mentioned above, the examining division addressed the argument about the parametric trigger in the decision at points 2.3 and 2.3.1. Furthermore, the division admirably minuted the discussion of this point at page 2, third last paragraph. This shows why it is always advisable to minute clearly the arguments exchanged about contentious points.

As a result, since non-technical features have to be ignored for assessing non-obviousness, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0550/14 (Catastrophe relief/SWISS RE) of September 14, 2021

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

www.bardehle.com/team/detail/heckeler-patrick.html

Damage cover and automated payment: non-technical

The application underlying this decision relates to automatically paying financial compensation to affected business units, e.g. airlines and their fleets. However, the European Patent Office refused to grant a patent that mainly focused on damage cover and automated compensation payment. Here are the practical takeaways of the decision T 0288/19 (notional business person) of February 17, 2022 of Technical Board of Appeal 3.4.03:

Key takeaways

A business person oftentimes provides a framework and the object of an invention. However, the solution to this object can only be provided by a technically skilled person.

The invention

The Board in charge summarized the invention as follows:

1.1 The volcano activities in Iceland 2010 and the subsequent closure of airspace led to an estimated loss of 1.7 billion dollars for the airline industry. Between 15 and 21 April 2010 almost the entire European airspace was closed resulting in cancellation of all flights in, to and from Europe. The invention relates to dealing with such airport closures and flight plan changes related to natural disaster events.

1.2 When aircraft are grounded for more than ten days, airline companies may no longer be able to pay the operating resources (kerosene, salaries, maintenance etc.) due to lack of revenues. It is an aim of the invention to reduce the risk that airline companies go bankrupt due to lack of cash for operation during or after natural disaster events. The airlines seek risk transfer by means of insurance technology to cover such unforeseeable events and to ensure operation of the aircraft fleets. The related technology should be able to cover risk events such as 1) strikes, riots etc.; 2) war, hijacking, terror; 3) pandemic-based risks; 4) extreme weather situations; 5) instabilities in Air Traffic Control (ATC). However, the covers are technically difficult to design because no standards e.g. for critical ash concentrations exist. It is an object of the invention to provide an automated system preventing imminent grounding of aircraft fleets due to missing financial resources after risk events and to provide a systematic and automated management of risk exposure.

1.3 The invention proposes automatically paying financial compensation to the affected business units, i.e. airlines and their fleets, by monitoring relevant airport data, defining critical thresholds and automating cover payments in case of airport closures.

Fig. 1 of WO 2015/008925 A1

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

Claim 1 (Claim 1 according to the Main Request and First Auxiliary Request (feature labelling (A) to (V) added by the Board))

(A) Avionic system (1) for emergency interception preventing imminent grounding or damages of aircraft fleets (81,…,84) following natural disaster events by providing interruption cover of the aircraft fleets (81,…,84) by means of an automated damage covering system (7), the natural disaster events leading to airport closings and being measurable at least based on atmospheric conditions and/or meteorological conditions and/or seismic conditions, and the automated damage covering system (7) being steered by a generated output or activation signal of the avionic system (1), comprising

(B) a selectable hash table (103, 203) assigned to a flight plan (102, 202) of an aircraft fleet (81,…,84) comprising table elements (101, 201) with operational parameters of an airport (91,…,94), wherein airports (91,…,94) covered by the table elements (101, 201) are airports (91,…,94) flown to according the fight (sic) plan (102, 202) of pooled aircraft fleet (81,…,84),

(C) a plurality of ground stations (911,…,914) situated at said flown to airports (91,…,94) of the fight (sic) plan (102, 202), wherein the ground stations (911,…,914) are linked via a communication network (50, 51) to a central processing unit (2) of the avionic system (1),

(D) wherein for detecting an airport closing, an electronic detection device (4) is integrated into the ground stations (911,…,914),

(E) wherein the central processing unit (2) comprises a receiver (3) for receiving transmissions from the detection device (4) via a communication network (50, 51) and a communication network interface (31),

(F) wherein the transmissions comprise measured log parameter vales of the aircraft fleet (81,…,84)

(G) at the moment situated at a specific airport (91,…,94) and

(H) parameters regarding a time interval parameter (1011, 2011) of an airport closing and an airport identification (1012, 2012) of an identification module of the ground station (911,…,914) containing the authentication data relevant for authenticating the related detection device (4),

(I) wherein the time interval parameters (1011, 2011) are saved to the operational parameter of the appropriate table element (101, 201) based on the airport identification (1012, 2012),

(J) wherein airport closings are automatically detected by the avionic system (1) by means of the transmission of the detection device (4),

(K) and wherein the avionic system (1) comprises triggers triggering measuring parameters of the natural disaster events

(L) comprising event strength values by defined trigger thresholds values providing adaptable border conditions for the natural disaster events,

(M) a filter module (5) of said central processing unit (2) dynamically incrementing a stack with the transmitted time interval parameters (1011, 2011) based on the hash table (103, 203)

(N) and activating a failure deployment device (6) by means of the filter module (5) if a threshold, triggered on the incremented stack value, is reached,

(O) thereby automatically generating an output signal (61) to the automated activatable damage covering system (7) operated or steered by the output signal to provide interruption cover of the aircraft fleet (41,…,44) for at least a part of said time interval of said airport closing by means of an automated damage covering system (7),

(P) said output signal being automated generated by means of the avionic system (1) for a dynamically scalable damage covering of the aircraft fleet (41,…,44) with an (sic) definable upper coverage limit,

(Q) and wherein said output signal is only generated, if said transmission comprises a definable minimum number of airport identifications assigned to airport closings thus creating an implicit geographic spread of the closed airports of the flight plan,

(R) and in that the automated damage covering system (7) is realized by means of an automated resource-pooling system integrated to the avionic system (1),

(S) the resource-pooling system comprising at least an assembly module to process risk related aircraft fleet data and to provide the likelihood value for said risk exposure a pooled aircraft fleet (41,.. .,44) based on the risk related aircraft fleet data,

(T) wherein the aircraft fleets (41,…,44) are connected to the automated resource-pooling system by means of a plurality of payment receiving modules configured to receive and store payments from the pooled aircraft fleets (41,…,44) for the pooling of their risks and

(U) wherein the payments are automated scaled based on the likelihood value of said risk exposure of a specific aircraft fleet (41,…,44), and

(V) wherein by means of the automated resource-pooling system flight interruption risks for of a variable number of aircraft fleets (41,…,44) and/or aircraft operators is sharable by providing a self-sufficient risk protection for a risk exposure of the aircraft fleets (41,…,44) and/or aircraft operators by means of the automated resource-pooling system.

Is it technical?

According to the assessment of the Board in charge, claim 1 of the main request and of the first auxiliary request includes the following distinguishing features over the closest prior art document D1:

3.2.7 Therefore D1 does not explicitly disclose

(a) flight plan data is presented as a hash table.

(b) a threshold which is linked to a minimum number of airport identifications assigned to airport closures thus creating an implicit geographic spread of the closed airports of the flight plan.

(c) the geographic spread is associated with geophysical disaster events.

(d) damage covering is performed with a definable upper coverage limit, instead of simple damage prevention.

(e) automated payments are scaled payments and are based on the likelihood of said risk exposure.

(f) flight interruption risks are shared by providing a self-sufficient risk protection.

Concerning the effect of these features, the Board commented as follows:

3.3.2 Effects and technical/non-technical character of the features:

(i) features (a) [part 1, considering the flight plan], (b) and (c) [creating an implicit geographic spread of the closed airports in case of a natural disaster] are related to preventing further financial damage. The character of these features is technical, the purpose is non-technical.

(ii) hashing the flight plan data has the technical effect of improved data base indexing. Both the character and effect of feature (a), part 2, are technical.

(iii) features (d) to (f) are related to a shared insurance cover system including managing the payments; the character and effect of these features as such are non-technical.

Afterwards, the Board held that the overall character and effect of claim 1 is technical:

3.3.3 To summarise, the subject of the present invention (the “what”) is an automated system for dealing with technical/financial damage of an aircraft fleet and is without any doubt technical. The purpose (the “why”) of the present invention however is the automation of a business scheme for providing monetary cover for financial damage to aircraft fleets based on available information, including flight plans and information about airport closures and natural events, i.e. a managerial system for managing the business operations of aircraft fleets including involved operational and financial risks, including covering financial losses of airlines caused by the situation of airport closures resulting from natural disaster. This purpose is non-technical and relates to a business method. The solution (the “how”) with respect to the disclosure of D1 is both technical (adaptation of the software) and non-technical (implementation of the business model). Therefore, the overall character and effect of claim 1 is technical.

Hence, claim 1 provides a mixed-type subject-matter.

Then, as a second step, the Board stated that it considers features (O) to (V) non-technical. Thus, these features may be used for formulating the objective technical problem to be solved:

3.3.4 Non-technical features within the meaning of Article 52(2)(c) EPC, i.e. features related to business methods, are allowed in the context of other technical features, but cannot contribute to inventive step. These features can thus be included into the formulation of the task (see, inter alia, G 1/19 [reasons 31], T 0641/00, G 3/08, Case Law of the Boards of Appeal, 9th edition 2019, sections I.D.9.1.2 to I.D.9.1.4). According to T 0641/00, the aim to be achieved in a non-technical field may legitimately appear in the formulation of the problem as part of the framework of the technical problem. Therefore, the non-technical features (O) to (V) (“damage cover” and “automated payment”) can be included into the task formulation as a framework condition to be fulfilled.

Then, contrary to the Appellant’s line of argumentation, the Board in charge held that the skilled person for the present case is not a notional business person, but a computer specialist:

3.4.3 In the present case the skilled person solving the objective technical problem however is not the “notional business person”, but a computer specialist, because the solution of the problem concerns principally re-programming the central CPU (e.g. of the ground station 81). The business person however provides the framework and object of the invention. This is very frequently the case for technical inventions, e.g. a business person may instruct an engineer to design a double-deck aircraft for up to 850 passengers with a budget of 10 billion dollars. The solution to this object can only be provided by a technically skilled person. In the present case the notional business person (e.g. insurance company in cooperation with the airline companies concerned) instructs a computer specialist with the implementation of an automated system. Their task is to adapt the software in module 81 of D1 (cf. also T 2522/16, reasons 3.2.1, T 0589/17, reasons 2.6, T 0755/18, reasons 3.5).

3.4.4 The Appellant argued that the skilled person needed to have specific knowledge in aircraft communication systems and aircraft security. The Board however concludes that such specific knowledge is not necessary because all raw data required for solving the problem is available on the computer base station 81 of D1. The modified software has only to provide a link between airport closure data and automated payments.

Against this background, the Board formulated the technical problem as follows:

3.5.2 The Board therefore formulates the objective technical problem with D1 as starting point as “technically implementing an automated management of financial risk exposure of scheduled flights due to airport closures, including implementing the claimed non-technical features (O) to (V)“.

Finally, the Board argued that the claimed subject-matter is rendered obvious to the skilled person by D1 combined with general knowledge, thereby individually addressing the technical and non-technical features:

3.6 Obviousness

ad (i)

3.6.1 The technically skilled person would therefore consider analysing whether airports were closed and whether such closures were linked to geophysical events covered by the insurance policy. They would then adapt the threshold defined in D1 to a specific number of airport closures within the given time window as defined in the insurance policy.

3.6.2 In order to deal with the technical and financial consequences of airport closures it is obvious to the skilled person to consider the concerned airports and flight plan routes to and from the closed airports. In view of the objective technical problem to be solved it would be a normal option to monitor which flight plan connection (and therefore which fleets and airlines) are concerned by the closure of specific airports and air-spaces. Furthermore, the emergency system of D3 teaches ([0084]) to take flight plan data into account. The skilled person would therefore adapt the software architecture of D1 and correlate the airport closure events with the flight plan data.

ad (ii)

3.6.3 In order to improve the data base indexing of the flight plan table the skilled person would choose the common option of providing the flight plan data in a hash table. D11 teaches the use of hash tables.

ad (iii)

3.6.4 Features (O) to (V) directly result from the problem to be solved.

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

More information

You can read the whole decision here: T 0288/19 of February 17, 2022 of Technical Board of Appeal 3.4.03

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

www.bardehle.com/team/detail/heckeler-patrick.html

Adjusting a credit according to a data file: non-technical

The application underlying this decision relates to the area of digital security. However, the European Patent Office refused to grant a patent that deals with an electronic safe. Here are the practical takeaways of the decision T 1607/18 of December 21, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

Technical features that do not contribute to the technical character of an invention can be included into the formulation of the technical problem.

The invention

The Board in charge summarized the invention as follows:

1.1 The present application is about an electronic safe for use in retail environments, where the safe counts the money being deposited and electronically transmits a report containing the amount of money counted to a central processing location.

1.2 Upon receipt of this report, the retailer can be credited the deposited money amount even before it is picked up by an armored car service and deposited at a bank or similar institution. Retailers can therefore benefit from cash collections almost immediately.

Fig. 2 of WO 2009/018095 A1

Here is how the invention is defined in claim 1:

Claim 1 (main request)

(A) An electronic system for providing bank credit to a retailer (10) for cash collections, comprising:

(B) an electronic safe disposed at a retailer location containing cash collected by a retailer over a period of time at the retailer location that has been deposited into the safe, the electronic safe being adapted:

(C) to calculate, at a designated time, a total amount of cash deposited into the safe over the period of time, and

(D) to create and to electronically transmit, to a facility (30), a data file identifying the calculated total amount of cash deposited into the safe over said period of time; and

(E) said facility, the facility being adapted:

to arrange for the crediting of the retailer by a bank (40) with the calculated total amount of cash deposited into the safe as identified in the data file,

(F) and to verify, using the electronically transmitted data file, the amount of cash deposited in the safe, after the cash has been transferred to the facility, to produce a verified amount,

(G) and to adjust the credit previously provided based on differences, if any, between the verified amount and the calculated total amount of cash deposited into the safe as identified in the data file.

Is it technical?

During the appeal proceedings, the Board in charge arrived at the conclusion that claim 1 only comprises one distinguishing feature over the closest prior art document D1:

2.3.2 D1 therefore does not explicitly disclose that the credit is adjusted based on differences, if any, between the verified amount and the calculated total amount of cash deposited into the safe as identified in the data file (second part of feature (G)).

Based on the distinguishing feature, the Appellant argued the technical effect and the problem to be solved as follows:

2.4.1 The Appellant has argued that the effect of the distinguishing features was that only small data files comprising the aggregated sum (in D1 e.g. the sum of the deposit of “3/6” and the first deposit of “3/7”) had to be transmitted thus reducing the load on the communication network.

2.4.2 The problem to be solved was the reduction of the amount of data sent between the safe and the central units. The invention generally simplified data handling and thereby error handling. The invention also required less bandwidth. The invention therefore achieved a technical effect by reducing the load on the network.

However, the Board in charge did bot follow the Appellant’s line of argumentation and considered the distinguishing feature as only having a business-related aim:

2.4.3 The Board however came to the conclusion that the effect of reducing the network load is not an effect of the difference between D1 and claim 1 (i.e. the second part of feature (G)). Indeed, feature (G) relates to a method of doing business, i.e. adjusting any difference between an accounted total amount and the amount of cash picked up by an armored car. This “adjusting” according to feature (G) is merely a non-technical business aim and does not achieve any technical effect or solve a technical problem by technical features. When regarded on its own, feature (G) would constitute subject-matter excluded from patentability under Article 52(2) and (3) EPC.

Hence, the Board formulated the technical problem as follows:

2.4.5 The problem to be solved can therefore be formulated as adjusting in the system of D1 the step of “reconciliation” (claim 4 of D1) by “adjusting the credit previously provided based on differences, if any, between the verified amount and the calculated total amount of cash deposited into the safe as identified in the data file” (cf. task of the agent, [0051], [0053], feature (G)).

Solving this problem would be obvious to the skilled person:

2.5.1 The solution to this problem results in a straightforward manner from the problem to be solved. It is obvious that the agent in D1 would adjust the credit, if the amount of cash arriving in the bank/ armored car service facility differs from the amount in the data file, e.g. if the retailer or anyone else has taken out cash from the electronic safe without any record.

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

More information

You can read the whole decision here: T 1607/18 of December 21, 2021 of Technical Board of Appeal 3.4.03

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Relationship between a user’s comment and a specific viewable object: non-technical

The application underlying this decision relates to the area of multimedia content. However, the European Patent Office refused to grant a patent that deals with a relationship between a user’s comment and a specific viewable object. Here are the practical takeaways of the decision T 1822/18 (Augmenting user-input information/ARRIS ENTERPRISES) of November 24, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

Lowering the cognitive burden for a user is not a technical effect.

The invention

According to the Board in charge, the claimed invention relates to augmenting user-input information. The Board summarized the invention as follows:

1. The application relates to augmenting user-input information associated with a media source such as a movie (description as published, paragraph [0002]). According to the background of the invention (description, paragraph [0003]), various devices exist that provide a source of viewable media content, such as televisions, computers and mobile devices. Viewers of such media sources may wish to provide some type of commentary related to what is being viewed.

Some services offer a viewer the opportunity to provide a comment that is then viewable by others who follow the viewer or who visit the web page hosting the comment. The comment is often general and easily assigned to the media content as a whole. In other cases, however, the comment is specific to a single portion of the content. This can be confusing, since a comment directed to a specific portion, for example, can lack relevance to a user outside the context of that specific portion of the content. A user may often wish to obtain additional information about a specific portion of content, people or objects viewed in the content, and this can be challenging.

Fig. 3 of WO 2013/162870 A1

Here is how the invention is defined in claim 1:

Claim 1 (main request - numbering added by the Board)

[F1] A method of augmenting user-input information (109), the method comprising:

[F2] associating (302) a first secondary device (108) with a primary media device (104), the primary media device (104) for displaying primary media content (101);

[F3] receiving (304), in the first secondary device (108), user-input information (109) that is input at the first secondary device (108) by a user of the first secondary device (108), wherein the input is during a display of the primary media content (101) on the primary media device (104);

[F4] analyzing (306) the user-input information (109) to automatically generate user-content metadata (111),

[F4a] wherein the user-input information comprises a user comment responsive to the display of the primary media content,

[F4b] the analyzing comprises parsing the user comment to extract one or more of a keyword from the user comment and a key phrase from the user comment, and the user-content metadata (111) comprises the extracted one or more of the keyword and the key phrase;

[F5] at least one of: receiving (310) primary-content metadata (107) related to the primary media content (101) and deriving (310) primary-content metadata (107) from the primary media content (101); and

[F6] in one or more devices, using the user-content metadata and the primary-content metadata to automatically generate an identified association between the user comment and the primary-content metadata,

[F6a] the generating comprising analyzing the user-content metadata and the primary-content metadata to identify (314) one or more associations between the user-content metadata (111) and the primary-content metadata (107);

[F7] wherein the primary-content metadata comprises information relating to a specific viewable object displayed in a scene in the primary media content, and

[F7a] wherein the identified association includes information that relates the user-input information to the specific viewable object displayed by the primary media device during the receiving of the user-input information by the first secondary device;

[F8] the method further comprising displaying an augmented user comment (117), wherein the augmented user comment (117) includes the automatically generated association that relates the user-input information to the specific viewable object.

Is it technical?

During the appeal proceedings, as a first step, the Board in charge determined the distinguishing features over the closest prior art document D1:

2.5.2 The board agrees with the examining division that the method disclosed in document D1 automatically creates an association between the user comment and the primary-content metadata, this metadata comprising, for example, the content ID and point in time (D1, paragraphs [0084], [0085], [0088], [0104], [0109] and [0114]). However, the board agrees with the appellant that features F6a and F7 are not disclosed in document D1. Consequently, the board concludes that the distinguishing features are the features F4b, F6a and F7. …

The Appellant argued the technical effect produced by the above-cited distinguishing features as follows:

2.6 According to the appellant a technical effect of the distinguishing features was that an association between the user-input information and a specific viewable object in the primary media content could be generated automatically using only the user’s comment and the primary-content metadata. In other words, the only user-input information that was used to generate the association was the user’s comment (statement of grounds of appeal, page 3).

Then, the Appellant defined the technical problem:

2.6.2 The appellant argued that in the light of the aforementioned technical effects the objective technical problems solved were: (i) how to adapt the method of document D1 to work with different devices, (ii) how to reduce or eliminate the disruption to viewers due to interaction with the primary device, and (iii) how to remove the possibility of incorrect “point and click” operations.

However, the Board in charge did not agree to this assessment:

2.7 Regarding the alleged effects of the distinguishing features with respect to avoiding the “point and click” operations used in the method disclosed in D1, there is nothing in claim 1 which precludes the use of “point and click” operations for user input, including for inputting the text of a user comment (for example by using a pointing device to select letters on a displayed keyboard). Moreover, according to the established case law, lowering the cognitive burden for a user is not a technical effect (see, for example, T 1741/08, Reasons 2.1; T 1834/10, Reasons 5). This applies also with respect to diverting the user’s attention as well as in the case of multiple viewers.

2.7.1 Furthermore, the board does not see that lowering a burden for the user is derivable from the distinguishing features over substantially the whole range claimed (see G 1/19, Reasons 82). Indeed, the claimed subject-matter is broad, and it is not limited to: a particular form of human-machine interaction, the case of multiple viewers, or a commenting user with special needs.

2.7.2 Regarding the possible generation of a wrong association in the method disclosed in document D1, the board informed the appellant during the oral proceedings that it was not convinced that the association created by the claimed method was necessarily one that was intended by the user. Indeed, the association created depends, among other things, on the availability of suitable primary-content metadata and the time period for receiving a comment after a user has viewed a specific media content on the display.

As a result, the Board arrived at the conclusion that the distinguishing feature would only relate to the presentation of information and would thus lack further technical considerations:

2.8 Contrary to the appellant’s submissions, the board considers – in line with the examining division’s opinion (see the contested decision, point 13.4; see also the annex to the summons of 10 May 2017, point 4.3) – that the distinguishing features are aimed at the presentation of information to the user for a non-technical purpose (for informational and commercial applications, for example; see the description, paragraph [0035], for an example application). In particular, the relationship between a user’s comment and a specific viewable object displayed serves only for the purpose of displaying this relationship with the aim of enhancing (“augmented user comment”) the informational content presented to a user.

In view of the above, the distinguishing features do not contribute to a “further” technical effect (see decision T 1173/97, OJ EPO 1999, 609). Moreover, the board does not see that the distinguishing features involve any “further technical considerations” (see opinion G 3/08, OJ EPO 2011, 10, Reasons 13.5.1). Instead, the generation of the association between the parsed user-input metadata and the primary-content metadata by means of analysing the metadata can only be seen as a non-technical algorithm underlying the claimed method. Claim 1 does not specify how this non-technical algorithm underlying the distinguishing features is specifically implemented by exploiting particular computer hardware characteristics, for example, which may, at least in certain circumstances, allow a specific technical effect to be derived within the computer system in the sense of a “further” technical effect (see decision G 1/19, Reasons 51).

Therefore, at the end of the hearing, the Board in charge dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1822/18 (Augmenting user-input information/ARRIS ENTERPRISES) of November 24, 2021

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Detecting street addresses in text: non-technical

The application underlying this decision relates to the area of electronic communication, such as emails and the like. However, the European Patent Office refused to grant a patent that specifically deals with detecting street addresses in a message text. Here are the practical takeaways of the decision T 0504/18 (Linking an address/BLACKBERRY) of June 18, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

Improved efficiency of a computer-implemented method due to algorithmic features of the program can normally only be considered a “further” technical effect if it is based on “further technical considerations”.

The invention

According to the Board in charge, the claimed invention relates to linking an address in a message such as an email. The Board summarized the invention as follows:

1. …

According to the technical background disclosed in the application, users of communication devices or computers may send messages such as emails that include phone numbers, email addresses or web addresses. Applications on some devices create hyperlinks for phone numbers, email addresses and web addresses, so that the user can click on the link within the message and the device will respond by respectively either placing a call, opening an email to be sent or opening the browser to the linked web page (paragraph [0005]).

Known mobile devices can obtain position or location information from a GPS (Global Positioning System) receiver or the like. A mapping application may use this information to display a map showing a mobile device’s current position (paragraphs [0002] and [0003]). Many mobile devices also have address books stored thereon that contain information such as street addresses, cities, postal codes, provinces, states, countries and telephone numbers for each entry in the respective address book (paragraph [0004]).

The application proposes detecting a physical address such as a street address within a text message, creating a link for this physical address so that selecting the link will result, for example, in the address location being displayed on a map (description, paragraphs [0029] and [0030]).

Fig. 1 of EP 2 246 793 A1

Here is how the invention is defined in claim 1:

Claim 1 (main request - numbering added by the Board)

[A] A computer-implemented method (400, 700) for use on a mobile device comprising a display, the method comprising on the mobile device:

[B] searching a text, wherein said searching comprises:

[C] finding a number in the text,

[D] when the number is found, searching forward in the text within a predetermined number of words of the number,

[E] identifying at least two character strings during said search forward, each character string being of a different predefined address indicator type (120), and

[F] selecting a segment of the text including the number and said at least two character strings;

[G] assessing whether or not the segment comprises an address (130);

[H] displaying the segment on the display of the mobile device (150); and

[I] if the segment is assessed as comprising an address, including a link for display, the link pointing to at least one application (140),

[J] wherein assessing whether or not the segment comprises an address comprises:

[K] determining a probability that the segment comprises a valid address based on at least: a number of character strings of different predefined address indicator types within the segment, a number of character strings of different predefined address indicator types within the segment that are cross-referenced in a database, and proximities of the at least two character strings to each other; and

[L] if the probability is above a threshold probability, assessing the address as valid;

[M] further comprising configuring the link to start an application to present a menu of options related to the address on the display, when selected.

Is it technical?

During the oral hearing, both the Board in charge and the Appellant agreed that the closest prior art document D1 fails to teach how the links for the street addresses are generated. This is because D1 lacks any disclosure about an algorithm that is capable of detecting street addresses in text. However, according to the Board, detecting street addresses in text would not be technical:

3.5 …

However, the board regards the problem of detecting street addresses in text as non-technical. A street address consists of data in an administrative, non-technical data format. In respect of the specific algorithm for recognising a street address, specified in claim features B to G and J to L, the board sees no “further technical considerations” (see opinion G 3/08, OJ EPO 2011, 10, Reasons 13.5 and 13.5.1) underlying this algorithm, relating for example to functioning of the computer, but rather considerations relating to “merely” finding an algorithm in a non-technical field.

To convince the Board, the Appellant argued that including links in the text of a message would make the message interactive, rendering it technical:

3.6 In the oral proceedings, the appellant argued that the claimed automated creation of links to an application made a text document interactive, and therefore provided a technical purpose. The claim features relating to the algorithm for address detection, even if they were themselves regarded as non-technical by the board, contributed to achieving the overall technical purpose of the claimed method and thus also contributed to the technical character of the claimed method. In this context, the appellant referred to decision G 1/19, Reasons 112 and 113. The appellant argued that non-technical features could make a technical contribution if they interacted with technical features such as the menu of options to achieve a technical purpose.

Furthermore, according to the Appellant, the structure of the claimed algorithm to generate the links would be efficient due its specific 2-step structure and thus would involve further technical considerations. To substantiate its position, the Appellant pointed to a decision of 1992:

Furthermore, referring to decision T 769/92, the appellant argued that “technical considerations” did not need to relate to computer hardware, but more generally to the processing of data. In particular, the claimed address detection algorithm involved “further technical considerations”, as it had been structured in a two-step approach to make it efficient. In a first step, the algorithm identified a segment of the text comprising a number and at least two character strings using fast, simple pattern matching (see steps B to F of claim 1). Only in a second step did the algorithm involve more complex processing, such as accessing a database in order to validate the segment as an address (see steps G and J to L of claim 1).

However, the Board did not follow the arguments of the Appellant. First of all, the Board expressed that the findings of T 769/92 would be obsolete in view of G 3/08. Furthermore, the alleged improved efficiency could only provide a further technical effect if it is based on further technical considerations, which would not be the case here:

3.7 In respect of the appellant’s argument regarding technical considerations, the cited decision T 769/92 can no longer provide a basis in view of opinion G 3/08, Reasons 13.5 and 13.5.1, which states that technical considerations are not sufficient and raises the bar for technical character to “further technical considerations”. The recent decision T 2825/19, Reasons 5.3.6, considered that “further technical considerations” could be considerations that specifically exploit technical properties of the computer system hardware to solve a technical problem related to the internal operation of the computer system. In that cited decision the board saw no support for interpreting the concept “further technical considerations” to give a broader meaning that would also cover considerations aiming to solve problems “merely” relating to programming. Consequently, in agreement with the reasoning of that decision, the board does not accept the appellant’s view that the processing of data in general implies “further technical considerations” (see also decision T 598/14, Reasons 2.3).

In respect of the improved efficiency of the claimed algorithm as a technical effect, the board holds the view that improved efficiency of a computer-implemented method due to algorithmic features of the program can normally only be considered a “further” technical effect if it is based on “further technical considerations” (see decisions T 1924/17, Reasons 21; T 697/17, Reasons 5.2.3), but that is not the case here.

Therefore, according to the Board, features B to J and feature G of claim 1 of the main request, relating to the algorithm for generating links of the addresses in the text of the message, have to be considered non-technical and thus have to be ignored for the assessment of inventive step:

3.8 In respect of the appellant’s argument that the algorithm for detecting an address contributed to the overall technical purpose of providing an interactive text document, the board sees no such contribution in the present case, since the relationship between automated address detection and configuration of the link is a mere aggregation of activities. Enabling interactivity by using links was already known from document D1 (and well known in general, as admitted by the appellant). It is clear that the selectable links work independently of the automatic detection of any street addresses; they might just be added manually to such an address, for example. Moreover, D1 discloses that the links can also be used for other kinds of data such as web addresses or phone numbers. Hence, the board is not convinced that the alleged technical purpose of generating interactive text documents by means of links could somehow lend technical character to the algorithm for automated address detection.

3.9 According to the established case law of the boards of appeal, when assessing inventive step in accordance with the problem-and-solution approach, an aim to be achieved in a non-technical field may legitimately appear in the formulation of the problem as part of the framework of the technical problem to be solved, as a constraint that has to be met (see decisions T 641/00, OJ EPO 2003, 352; T 154/04, OJ EPO 2008, 46).

Consequently, when starting from document D1, the objective technical problem to be solved is how to automatically provide selectable links in the text messages of D1 for the known street address, given the algorithm for detecting street addresses in a text according to features B to G and J to L of claim 1.

Since all other features are known from D1, as a result, the appeal was dismissed due to lack of inventive step within the meaning of Article 56 EPC.

More information

You can read the whole decision here: T 0504/18 (Linking an address/BLACKBERRY) of June 18, 2021

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Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

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Flight simulators: partly technical

This decision relates to a European patent application in the field of flight simulators. Here are the practical takeaways from the decision T 0424/16 of 29.6.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The choice by a game developer of the nature of the graphical elements to be displayed on the screen, the manner in which a user may control the graphical elements by means of the input device, and the consequences of such user inputs for the progress of the game, must generally be regarded as non-technical aspects of the game content, conceived as part of a creative design process aiming to produce a game which appeals to the gaming public.

It is inherent in the nature of a flight simulation video game that the user must be able to control the flight direction by means of the input device. Whether this is achieved in a realistic manner by, for example, a joystick, or in a simplified manner by indicating a desired direction of flight by means of a graphical element movable by a pointing device, is a choice to be made by a game developer in deciding the content and nature of the game.

The invention

The invention concerns an aircraft control system and method for a user of a simulated aircraft, wherein the desired direction of flight is controlled by means of a “pointing device”, which may be “a computer mouse, a touch screen or a trackball”. By this means, “the user will be able to take off, land, fly traffic patterns, intercept other aircraft, etc., without spending a long time learning how to align simulated aircraft with the desired direction”. The system is not, therefore, a professional flight simulator, of the type used to train pilots, but a system in which flight simulation software is run on a PC etc. for entertainment. In short, the invention is a computer game system and method.

Figure 1 EP2642467

Here is how the invention was defined in claim 1:

Claim 1 (Auxiliary Request 1)

An aircraft control system (200) for a user of a simulated aircraft (100) through a desired direction of flight (106), comprising:

a video device (205) for presenting the user with a view of a simulated environment;

modeling means (203) responsive to the desired direction of flight (106) for determining position and orientation of the simulated aircraft (100); and

a pointing device (202) for controlling the desired direction of flight (106), wherein a graphical element is shown on the video device (205) corresponding to the desired direction of flight (106) and wherein said graphical element moves in response to the user moving said pointing device; and

wherein the modeling means (203) analyzes which control surface adjustments are needed to the simulated aircraft (100) to fly along the desired direction of flight (106) and then applies said control surface adjustments to the simulated aircraft to align the aircraft with the desired direction of flight.

Is it patentable?

Claim 1 of the main request was found to lack clarity, which had been improved in the Auxiliary Request I (AR1). The discussion of inventive step was therefore focused on claim 1 of AR1. D1 was considered as the closest prior art. The Board considered the following features of claim 1 of AR1 as the distinguishing features:

(a) The graphical element on the video device “correspond[s] to the desired direction of flight” and the system operates “to align the aircraft with the desired direction of flight” as indicated by the graphical element;

(b) “wherein the modeling means (203) analyzes which control surface adjustments are needed to the simulated aircraft (100) to fly along the desired direction of flight (106) and …”

(c) the modelling means “then applies said control surface adjustments to the simulated aircraft” (to thereby align the aircraft with the desired direction of flight).

It must first be determined whether features (a)-(c) are of a purely technical character, as contended by the appellant, or whether they comprise non-technical features.

Feature (a)

4.3 A video or computer game typically involves an animated image comprising graphical elements being displayed on a video screen to a user having the power to control or influence properties of one or more of the graphical elements by manipulating an input device, such as a mouse or joystick, the changes brought about by such manipulations being displayed on the screen.

4.4 While video screens and input devices are technical devices per se, the choice by a game developer of the nature of the graphical elements to be displayed on the screen, the manner in which a user may control the graphical elements by means of the input device, and the consequences of such user inputs for the progress of the game, must generally be regarded as non-technical aspects of the game content, conceived as part of a creative design process aiming to produce a game which appeals to the gaming public. The same is true of the tasks which a user is set and the levels of difficulty associated with such tasks.

It is accepted that in certain exceptional cases the Boards have recognised a graphical feature displayed in a video game as having a technical character (see below, points 4.18 to 4.21). However, as a general rule, the features mentioned in the previous paragraph constitute non-technical aspects of the game to be played.

4.5 In the Board’s view, feature (a) is just such a non-technical feature, being part of the content of the game. It is inherent in the nature of a flight simulation video game that the user must be able to control the flight direction by means of the input device. Whether this is achieved in a realistic manner by, for example, a joystick, or in a simplified manner by indicating a desired direction of flight by means of a graphical element movable by a pointing device, is a choice to be made by a game developer in deciding the content and nature of the game.

Features (b) and (c)

4.6 Concerning features (b) and (c), clearly the modeling means is a technical feature, but it may be asked whether the effects which the modeling means is programmed to produce can be considered to make a technical contribution to the claimed subject-matter (the Examining Division found that they did not).

Features (b) and (c) produce the effects that the aircraft is aligned with the direction indicated in feature (a), and that the simulated change in direction corresponds to a realistic change of trajectory of the aircraft, i.e. one which could actually be brought about by appropriate adjustment of the flight control surfaces (ailerons, elevators, rudder) of the real aircraft which the system is aiming to simulate.

This is achieved by the modeling means performing an analysis to determine which control surface adjustments would be needed to fly along the desired direction of flight, and then applying these control surface adjustments to the simulated aircraft. As will be shown below (point 4.13), the Board’s conclusion on inventive step is the same whether these features are considered to be technical or not, and hence the Board proceeds by assuming, arguendo, and to the appellant’s advantage, that these features are technical.

Inventive step

4.7 Claim 1 therefore comprises a mixture of technical and non-technical features, and the Board will apply the principles set out in T 641/00, according to which features which do not contribute to the technical character of the invention cannot support the presence of inventive step, but may legitimately appear as part of the framework of the technical problem to be solved, in particular as a constraint that has to be met (T 641/00, Headnote, points I and II).

4.8 In the light of the above considerations, the Board sees the technical problem solved by the distinguishing features as implementing a control system for a simulated aircraft which aligns the aircraft with a desired direction of flight as indicated by a graphical element on screen which is moved by a pointing device, subject to the constraint that the simulated change in direction corresponds to a realistic change of trajectory of the aircraft being simulated.

4.9 Since the problem facing the skilled person includes the requirement that any manoeuvre must be realistic, i.e. must correspond to one which could actually be carried out in practice as a result of adjustments to the flight control surfaces of the simulated aircraft, it would be obvious, if not inevitable, that the solution must involve determining (by some means, which may be referred to as “modeling means”) a set of adjustments to the flight control surfaces which would bring about the desired trajectory change. Without such a determination, it is difficult to see how it could be verified that the envisaged manoeuvre would correspond to one which could actually be carried out in practice. In the Board’s view, the programming required to implement such a determination would be within the capacity of the skilled person in the field, and the appellant has not argued otherwise.

4.10 Having calculated the adjustments required to realistically manoeuvre the aircraft to align with the indicated direction, it would then be obvious to implement the manoeuvre by providing the calculated adjustments as inputs into the flight simulation software so that the simulated aircraft would follow the appropriate path.

In the end, the Board judged that the subject-matter of claim 1 of AR1 did not involve an inventive step within the meaning of Articles 52(1) and 56 EPC. The other auxiliary requests were either not allowable or not admitted into the proceedings. Hence, the European application was finally refused.

More information

You can read the whole decision here: T 0424/16 of 29.6.2021 of Technical Board of Appeal 3.4.03.

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Implementing a game tournament: non-technical

This application underlying this decision relates to the area of computer games. However, the European Patent Office refused to grant a patent that deals with implementing a tournament for players of a computer game. Here are the practical takeaways of the decision T 1488/17 of October 12, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

For being considered technical with respect to patentability, it is not sufficient that a feature belongs to a technical system. Instead, it must contribute to the solution of a technical problem.

The invention

According to the Board in charge, the claimed invention relates to a system for conducting online a video game tournament having a plurality of levels. The Board summarized the invention as follows:

1.2 The claimed invention proposes a system conducting a video game tournament in which players can decide themselves when they play their game(s). The system maintains a list of registered players and the level of the tournament which each player is eligible to play at. Players have first to declare themselves ready to play before they are set to play a game. The system maintains a second list of players that have declared themselves ready to play. The system matches players, who are in this second list and at the same level, for a game. After the game ends, the system allows the winner to advance to the next (higher) level, and if they were at the last (highest) level they are awarded a prize.

After each game, players can decide whether or not they declare themselves ready to play the next game. So players can play several games in a row or can interrupt the tournament and resume at a later time, without any consequence to the running of the tournament. In such a way, the system allows players to have more control of their playing schedule, while the tournament runs normally (see paragraph [0010] of the application).

Fig. 3 of WO 2012/174656 A1

Here is how the invention is defined in claim 1:

Claim 1 (main request)

A system for conducting a video game tournament having a plurality of levels, starting with a first level and ending with a last level, and involving a plurality of competing players, the system comprising a tournament server connected to a communications network; each player has a respective player device and game machine; a hosting network also connected to the communications network, wherein the game machines are connected via the hosting network, wherein the player devices are connected to the tournament server via the communications network, wherein the matches are played on the hosting network and the hosting network is configured to transmit the results of each match to the tournament server via the communications network, and wherein the tournament server includes:

a. a record of competing players registered for the tournament indicating at which level each player is eligible to play;

b. a receiver configured to receive indications from the players that they are ready to play a match;

c. a ready list for each level which includes players who have indicated that they are ready to play a match and who are eligible to play at that level;

d. a processor configured to match players on each ready list, output a signal to the matched players of the match and remove the matched players from the ready list;

e. a receiver configured to receive the results of each completed match;

f. a processor configured to analyze the results to determine whether each player won or lost the match, wherein the second processor is further adapted to update the record of competing players to indicate that a winning player is eligible to play at a higher level when the player wins a match that is not at the last level;

wherein the tournament server is configured to award a grand prize to the winning player when the player wins a match at the last level, and wherein each pair of matched players comprises two players who are selected to compete against each other in a match.

Is it technical?

During the appeal proceedings, the Board in charge noted that it is common ground that claim 1 differs from the closest prior art document D2 in the following two aspects:

2.2 …

– it provides a ready list in the tournament server, the ready list being populated in response to signals received from players via their player devices;

– it provides a second processor in the tournament server which is configured to match players on the ready list, transmits a signal to each of the matched players and updates the ready list by deleting the matched players (see also statement of the grounds of appeal, last paragraph on the first page).

According to the appellant’s first line of argumentation, the claimed subject-matter would make the course of a tournament more flexible:

2.3 … The claimed system provided flexibility to the players because they did not need to play any games at predetermined times. Players could play whenever they wished and this did not affect the other players participating at the tournament.

However, in the Board’s view, the distinguishing features would only define how the tournament is played and would thus not relate to the solution of a technical problem:

2.5 In the board’s view, the distinguishing features define how the tournament is to be run, i.e. they relate to the rules of running the tournament. Such rules are rules for playing games, which are not technical and excluded from patentability as such (Article 52(2)(c) and (3) EPC).

Moreover, the increased flexibility would not be achieved by a technical consideration but only by modifying the rules of the tournament:

2.5.2 Moreover, the increased flexibility is achieved by modifying the rules of the game tournament. It is the change of the rules that provides the possibility to the players to determine freely when they play their matches. As stated previously, the rules of the tournament are not technical, and any modification to them does not address any technical problem or involve any technical considerations, but merely provides a set of new rules for playing a game.

Hence, the distinguishing features would only relate to non-technical game rules:

2.5.3 Hence, the claimed system differs from the one in D2 only in that it runs a tournament with modified game rules. These modified rules are not technical as they relate to the underlying non-technical game rules of the tournament. According to established case law and practice (see e.g. T 641/00, “Two identities/COMVIK“, OJ EPO 2003, 352, Headnote 2, and Reasons 5 to 7), these modified rules for running the tournament will be given to the skilled person for implementation.

According to a second line of argumentation, the appellant stated that the distinguishing features belong to a technical system and therefore have to be considered as technical:

2.6 In an alternative line of reasoning, the appellant argued that the claims related to a system, which was incontestably technical, and the distinguishing features were technical features. Even if these features were implementing rules for playing games, this did not change the fact that the features themselves were components of a technical system and were of technical nature. Although they were known technical components when taken in isolation, it was their functions that were important. Each component had an associated function and enabled players to play in a certain way. The technical problem was not related to the implementation of game rules but to how to provide a system for the specific game tournament. This was a technical problem.

However, again, the Board in charge did not agree:

2.7 The board does not find this argument persuasive. As a general remark, the board notes that a distinguishing feature needs to solve a technical problem in a non-obvious way in order to be considered a basis for an inventive step.

2.8 Summarising, the board’s conclusion is that the features distinguishing claim 1 from the state of the art constitute an obvious implementation of the non-technical rules for playing the game tournament.

Hence, the distinguishing features cannot be taken into account for the assessment of inventive step. As a result, the appeal was dismissed due to lack of inventive step within the meaning of Article 56 EPC.

More information

You can read the whole decision here: T 1488/17 of October 12, 2021

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

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Whitelist October to December 2021

In the 4^th quarter (October to December) of 2021, only 2 positively decided cases were added to our knowledge base in which relevant aspects of the claimed-subject-matter were considered technical. For those who do not have the time to read all of our selected decision, in the following, we will briefly summarize these cases.

T 2010/17: Selection of an available memory size

The application underlying this decision relates to the configuration of circuits. More specifically, a configuration can be locked and protected by a signature.

The feature of “generating a signature representative of the selected memory size by the integrated circuit” was considered technical by the Board in charge. However, the Board also ruled that this feature is rendered obvious to the skilled person.

T 0227/18: Supporting multiple instances of the same payment application

This decision relates to a method for supporting a plurality of instances of the same type of payment application, e.g. MasterCard PayPass or Maestro PayPass, on a wireless smart device.

According to the Board in charge, associating different instances/bank accounts with the same type of application is a technical solution to the problem of how to enable the use of different bank accounts with the same type of application using a single IC card or smart device.

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

www.bardehle.com/team/detail/heckeler-patrick.html

Optimized load management: technical

This decision relates to a European patent regarding a method for optimizing a chronological developing of consumption of electric energy by a group of different consumers with regard to a supply of electric power. The patent has been unsuccessfully opposed after grant and the opponent has filed an appeal. Here are the practical takeaways from the decision T 0199/16 of 27.8.2021 of Technical Board of Appeal 3.5.02:

Key takeaways

Whether a feature contributes to the technical character of the claimed subject-matter is to be assessed in view of the whole scope of the claim.

The invention

The invention generally relates to a method of and an apparatus for optimizing a chronological developing of consumption of electric energy by a group of different consumers with regard to a supply of electric power which includes electric power from at least one wind or solar power generator.

Figure 1 of EP2695270

Here is how the invention was defined in claim 1:

Claim 1 (granted)

[1] A method of optimizing a chronological developing of consumption of electric power

[1.1] by a group of different consumers (2 to 7) with regard to a supply of electric power

[1.2] including electric power from at least one wind or solar power generator (8),

[1.3.1] – wherein a consumption of electric power by the individual consumer (2 to 7) is measured

[1.3.2] to determine characteristic time curves of the consumption of electric power by the individual consumers (2 to 7);

[1.4] – wherein a prognosis of a chronological developing of the supply of electric power from the at least one power generator (8) is made for a future period of time;

[1.5.1] – wherein a plan for apportioning electric power to the individual consumers (2 to 7) within the future period of time is

[1.5.2] made based on the characteristic time curves of the consumption of electric power by the individual consumers (2 to 7) and

[1.5.3] adapted to the prognosis; and

[1.6] – wherein electric power is apportioned to the individual consumers (2 to 7) according to the plan within the future period of time,

characterized in

[1.7] – that the consumption of electric power by the individual consumers (2 to 7) is measured at a sample rate of at least 0.1 Hz; and

[1.8] – that the electric power is apportioned according to the plan within the future period of time at a temporal resolution equal to at least 0.1 Hz.

Is it patentable?

D1 was considered as the closest prior art. It was unarguable that D1 does not disclose features 1.3.2, 1.4 and 1.5.1 to 1.5.3. However, the respondent (opponent in the opposition proceedings) argued that these features do not have a technical character, but rather relate to mere mental acts and therefore are not to be taken into account in the assessment of inventive step.

However, the Board in charge had a different opinion:

2.1.4 The board recognises that method steps 1.3.2, 1.4 and 1.5.1 to 1.5.3 of claim 1, relating to determining characteristic time curves, making a prognosis for a future time period, making a plan for apportioning of electric power based on the characteristic time curves and adapting it to the prognosis, when considered in isolation, only involve data processing and simulation aspects. However it is a general principle that the question whether a feature contributes to the technical character of the claimed subject-matter is to be assessed in view of the whole scope of the claim.

The claimed invention does not refer to a simulation as such. The data processing or simulation is rather defined in claim 1 as being based on (real) measurements of consumed electric power in a technical system, resulting in a plan and a prognosis, which does not produce a purely virtual effect. Rather, the plan made on the basis of the characteristic time curves and thus, on the basis of the measured consumed electric power, is in fact defined in claim 1 as being used for a (real) apportionment of the electric power according to this plan within the future period of time at a temporal resolution equal to at least 0.1 Hz (feature 1.8). Consequently, claim 1 is clearly limited to a technical teaching, involving the specific technical use of the calculated characteristic time curves, plan and prognosis. Features 1.3.2, 1.4 and 1.5.1 to 1.5.3 in particular define a way of processing the measured consumed electric power such as to achieve an appropriate apportionment of electric power to individual consumers, and thus contribute to a specific technical effect. Thus, irrespective of wether features 1.3.2, 1.4 and 1.5.1 to 1.5.3 are per se considered to be technical or non-technical in nature, in the overall context of claim 1, they in any case provide a technical contribution to the invention, having technical character as a whole, over the prior art, and are consequently to be taken into account in the assessment of inventive step (see also the findings in T 0641/00 (COMVIK), Headnote I.).

2.1.5 For the sake of completeness, the board observes that it does not understand the decision G 1/19, cited by the respondent, to mean that any feature in a claim related to a simulation, if considered in isolation, is in principle not to be taken into account in the assessment of inventive step, and the respondent has not submitted anything further in this respect.

2.1.6 The board has therefore come to the conclusion that features 1.3.2, 1.4 and 1.5.1 to 1.5.3 are to be taken into account in the assessment of inventive step.

In the end, the Board concluded that the subject-matter of claim 1 is not rendered obvious by document D1 and that the ground for opposition under Article 100(a) in combination with Article 56 EPC does not prejudice the maintenance of the patent as granted.

Hence, the patent is maintained as granted.

More information

You can read the whole decision here:T 0199/16of 27.8.2021 of Technical Board of Appeal 3.5.02.

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Patrick Heckeler

Patrick is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.

Key takeaways

The invention

Claim 1 (Main Request)

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The invention

Claim 1 (Main Request)

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The invention

Claim 1 (Claim 1 according to the Main Request and First Auxiliary Request (feature labelling (A) to (V) added by the Board))

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The invention

Claim 1 (main request)

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The invention

Claim 1 (main request - numbering added by the Board)

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The invention

Claim 1 (main request - numbering added by the Board)

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The invention

Claim 1 (Auxiliary Request 1)

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The invention

Claim 1 (main request)

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T 2010/17: Selection of an available memory size

T 0227/18: Supporting multiple instances of the same payment application

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Key takeaways

The invention

Claim 1 (granted)

Is it patentable?

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