Author Archive

Informing conference participants about the conference proceedings: non-technical

In this decision, relating to an application concerning microphones typically used at conferences, the European Patent Office refused to grant a patent relating to informing conference participants about the conference proceedings by means of different colours of a ring-shaped indicator attached to a speaker’s microphone. Here are the practical takeaways of the decision T 1895/17 (Ring-shaped microphone indicator/Bosch) of December 8, 2020 of Technical Board of Appeal 3.5.03:

Key takeaways

How cognitive content is conveyed to a user does not contribute to a technical solution to a technical problem.

The invention

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

The application concerns a conference system with a delegate unit having a microphone. The microphone (58) has a ring-shaped indicator (96) mounted between its stem (94) and its windshield (98).

The indicator can radiate in at least two colours, either steadily or by means of flashing. By doing so, various states of the delegate unit can be indicated, including a “microphone-on” state indicating who is currently speaking, a “request-to-speak” state indicating who has requested to speak, a “next-speaker” state indicating who will be the next speaker and a “last-minute” state indicating that the current speaker has used up almost all of their speaker time.

As a result, the audience attending a conference via the conference system can be provided with additional information about the way in which the conference proceeds.

Fig. 2 of EP 1 686 835 A1

Here is how the invention is defined in claim 7:

  • Claim 7 (main request - numbering added by the Board)

Is it technical?

During the appeal proceedings, as a first step, the Board in charge determined the distinguishing features of claim 7 over the closest prior art document D5 as follows:

4.3 As to features (c) and (d), document D5 does not disclose that the claimed ring-shaped indicator also radiates light in a second colour, differing from the first colour and indicating the second state of the delegate unit, i.e. it does not disclose features (c) and (d).

As a next step, the Board determined the effect of the distinguishing features, specifically with respect to the claimed first and second state:

4.4.1 It is apparent that these features do not provide details concerning the first and second state, in particular concerning what these states actually represent. However, from the dependent claims the skilled reader would immediately understand that the second state of the delegate unit is meant to reflect a request of a user, see e.g. claim 4 (or, similarly, claim 12) of the main request stating that the ring-shaped indicator radiating steadily in the second colour indicates a “request-to-speak-state” and claim 13 of the main request specifying that the ring-shaped indicator flashing in the second colour means that the “request to speak” is the first one on a list of “requests to speak”. Neither the claims nor the description comprise an example of the second state that represents a functional state of the delegate unit.

Based on this assessment, the Board in charge concludes that the two states do not provide any technical information. More specifically, the information provided by the colours of the ring-shaped indicator would not be directed at the improvement of a technical device and would require a cognitive interpretation of a human person to be understood:

4.4.2 As a result, the second state referred to in features (c) and (d) is rather related to cognitive information addressed to a person’s mental process rather than to “technical information” within the meaning of T 336/14 (see Reasons 1.2.5), i.e. it requires a cognitive interpretation by this person to discern the meaning of the “second colour”. In other words, this information is not directed to an improved operation of a technical device such as the microphone or delegate unit by the person.

More precisely, the Board argued that the ring-shaped indicator only refers to how cognitive information is presented to a user. Then, the Board outlined that how cognitive content is provided to a user/person does not contribute to the solution of a technical problem:

4.4.3 Moreover, the mirroring of a second state of the delegate unit by the ring-shaped indicator of the claimed microphone by means of a second colour as apparent from feature (c) is merely related to how cognitive information is presented to a user (see e.g. T 1143/06 and T 1802/13). In line with T 1143/06 (cf. Reasons 5.4), a feature which relates to the manner how cognitive content is conveyed to the user normally does not contribute to a technical solution to a technical problem and the board cannot recognise why the present application would constitute an exception in this respect.

Against this background and in view of the closest prior art D5, the Board in charge formulated the problem solved by the distinguishing features as follows:

4.4.5 The only technical aspect of features (c) and (d) resides in the fact that the same ring-shaped indicator of the microphone is used to mirror the delegate unit’s first and second state. It provides for a practical implementation of the non-technical aim mentioned above. In accordance with the well-established “COMVIK approach” (T 641/00, headnote 2), this non-technical aim may legitimately be incorporated into the objective technical problem as a constraint to be met.

4.5 Hence, the underlying objective technical problem may be framed as “how to provide for a practical implementation ensuring that also the conference participants (and not only the speakers) can be informed about the states of D5’s delegate unit“.

However, confronted with this problem in view of D5, the skilled person would arrive at the claimed subject-matter without being inventive:

4.6 When confronted with the above objective technical problem, it would have been obvious for the person skilled in the field of conference systems (such as the “CDS 4000” system of D5), based on their common general knowledge, to augment the functionality of the microphone’s ring-shaped indicator of D5 to not only mirror the delegate unit’s red-light indicator, as is typically the case for conventional conference systems, but to mirror also its green-light indicator.

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

More information

You can read the whole decision here: T 1895/17 (Ring-shaped microphone indicator/Bosch) of December 8, 2020

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Recording usage data for an industrial truck: non-technical

This decision relates to a European patent application for a method for recording usage data for an industrial truck. Here are the practical takeaways from the decision T 0199/16 () of 14.10.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The generation of fee calculations is of a non-technical nature and as such without a technical connection is excluded from patentability by Article 52 (2) EPC.

The invention

The application relates to a method for user data acquisition of a truck for calculating fees for the use of the truck. It is proposed to report the wear-relevant measured variables via a wireless connection to a central processing unit, where the fee can be calculated.

Figure of EP2518681

Here is how the invention was defined in claim 1:

  • Claim 1 (main request), translated from German to English

Is it patentable?

The Examining Division had refused the application for lack of inventive step, as the subject-matter of the claims related to a business method that would not result in a combined technical effect with the technical features known from telematics systems and would not change the technical character of these known technical features.

During the appeal stage, D4 was considered as the closest prior art for claim 1. The Board considers that D4 discloses features (A) to (G), but not “to determine usage data in the form of a usage fee” (feature (H)), i.e. the calculation of the (leasing) fee from the measured variables, e.g. the operating hours.

The appellant tried to argue that the distinguishing feature has technical effect because the calculated fee could also be used to correct the measured variables.

However, the Board was not convinced. The Board cannot directly deduce from the application that the calculated fee will be used for a data correction. Rather, it is examined how a data correction affects the pay. On the other hand, a data correction is not part of the wording of the claim.

Feature (H) therefore only has the effect that an automated billing based on the user time or the wear and tear of the device used can be created. Feature (H) thus has a non-technical effect, since it is primarily used for business purposes. The features (A) to (H) are technical in their entirety and some have purely technical purposes. However, this does not apply to feature (H) when considered in isolation.

The Board essentially agrees with the reasoning of the examining division that feature (H) in itself is a purely commercial, non-technical feature. The established problem-solution approach in the presence of non-technical features has been established since decision T 641/00. The solution to the problem is obvious in the present case simply by including the non-technical features in the problem.

In addition, the Board does not see any structural technical features in the wording of the claim that would pose technical problems for the specialist. The technical problem would more likely lie in how the measured quantities are determined. On the other hand, the application for the implementation of the feature (H) does not specify any special technical solutions that go beyond what the specialist could achieve by reprogramming the central computer, would have an additional or special technical effect or would represent an unexpected and non-obvious solution. The technical means used to solve the problem are not specified any further. The task to be solved is simply a fee calculation from measured variables. It follows directly from the task,

Therefore, the Board concluded that the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC). The appeal was thus dismissed.

More information

You can read the whole decision here: T 0199/16 () of 14.10.2021 of Technical Board of Appeal 3.4.03.

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Preventing payment in case of an incorrect amount entered by a customer: non-technical

In this decision, relevant for providers of digital payment solutions, the European Patent Office refused to grant a patent relating to prevent a payment in case of an incorrect amount entered by a customer. Here are the practical takeaways of the decision T 0994/18 of July 20, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

A technical effect must be clearly reflected by the claim wording. Otherwise it cannot be successfully used for arguing inventive step.

The invention

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

2. It relates to a secure mobile payment method ([0004]) in which essentially a merchant’s POS (“recipient terminal”) sends an invoice, including a “first” payment amount, to a customer’s mobile phone (“payer terminal”), which returns a “second” payment amount and an encrypted payment request. The second payment amount is either the first payment amount or an amount entered by the customer. The POS cannot decipher the payment request, but can only forward it to a payment server if the second payment amount is equal to the first payment amount.

Fig. 1 of WO 2011/065974 A1

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

At the end of the first instance examination phase, the application underlying the present decision was rejected since it was considered not inventive over a distributed networked information system exchanging both encrypted and unencrypted data. In more detail, the examining division considered the gist of the application relates to a payment process and thus to a business method that is excluded from patent protection.

To convince the Board in charge to set the first instance decision aside, the applicant argued that the claimed subject-matter provides for a payment method that requires less data transmission and improved security. However, the Board did not follow these arguments:

4.2 Even taking the appellant’s latest arguments into consideration, the Board judges that the decision to include or exclude the payment amount in the information which the merchant provides to the customer is not based on technical considerations. In particular, this is not related in any way to the effects mentioned by the appellant, i.e. reduced data transmission, cryptography or improved security.

Firstly, preventing payment in case of an incorrect amount entered by the customer is a business need – not transmitting payment data to the server follows directly from this need.

Secondly, irrespective of whether or not the customer enters a payment amount he communicates with the merchant and, thus, in this sense is verified.

Furthermore, the applicant argued in its brief of June 18, 2021 filed shortly before the oral hearing (which took place in absence of the applicant) that the payment amount as claimed is used as a verification of the user itself as this information is essentially used as a one-time-pad. However, the Board disagreed since it was of the opinion that the payment amount, from a technical perspective, cannot be used as a one-time pad:

The Board also notes that the payment amount cannot be equated to a one-time-pad. The latter has a specific technical meaning, namely that of a random secret key for encrypting a plain text, which is not what the payment amount is used for.

As a result, the Board in charge ruled that the subject-matter as claimed refers to a business method implemented in a known system architecture. Since features relating to a business method as such cannot contribute to inventive step, the appeal was dismissed.

More information

You can read the whole decision here: T 0994/18 of July 20, 2021

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Selection of an available memory size: technical

This decision relates to a European patent for a method for the selection of an available memory size of a circuit. The patent had been revoked as an outcome of the opposition proceedings. The proprietor appealed, but the Board of Appeal has not overturned the decision of the Opposition Division. Here are the practical takeaways from the decision T 2010/17 (Selection of an available memory size/THALES DIS FRANCE) of 9.6.2021 of Technical Board of Appeal 3.5.07:

Key takeaways

When assessing inventive step using the problem/solution approach, an aim to be achieved in a non-technical field may legitimately be added to the problem as a constraint to be met.

The invention

This European patent relates to a method for the selection of an available memory size of a circuit including at least a processor (for example a CPU, a microprocessor or a processing unit) and a memory.

The patent had been revoked based on the decision from the Opposition Division that claim 1 was not novel over D7.

Fig. 2 of EP2399257

Here is how the invention was defined in claim 1:

  • Claim 1 (main request, itemisation in parentheses added by the board)

Is it patentable?

During the appeal, the appellant (proprietor) contested that document D7 disclosed features (1.7), (1.8) and (1.9) of claim 1. The Board considers that document D7 discloses features (1.7) and (1.8) but does not explicitly or implicitly disclose feature (1.9) of claim 1:

1.5 The board agrees with the respondent that document D7 discloses features (1.7) and (1.8). These features specify that the selected memory size is registered and locked permanently. The claim wording specifies the method steps on a functional level and does not imply any actions for blocking access to physical memory on a permanent basis (such as using a one-time programming memory, which is disclosed in paragraph [0020] of the patent as an implementation option). The claim features (1.7) and (1.8) specify that only the selected memory size is registered and locked. This is exactly what document D7 discloses in paragraph [0029], where the selected memory size is indicated by the key, which is then applied to permanently enable access to all or some of the partitioned memory depending on the user’s selection. In document D7, by use of the received key, the selected memory size is registered permanently. In view of its interpretation of the claimed subject-matter and its analysis of D7, the board is not convinced by the appellant’s arguments. Consequently, features (1.7) and (1.8) of claim 1 are disclosed in document D7.

1.6 The board considers that document D7 does not explicitly or implicitly disclose feature (1.9) of claim 1. The term “signature” used in this feature is interpreted as meaning a “security signature” (see paragraph [0021] of the patent) used to calculate a signature for data to be transmitted (see paragraph [0022] of the patent). Hence, the board agrees with the appellant that, at least in the context of the current application, the term “signature” is to be interpreted as being associated with security and may be used for enhancing the security of a message to the server. This interpretation is consistent with the fact that the signature is generated by the integrated circuit itself. Consequently, the board is not convinced by the respondent’s arguments that the signature could be interpreted as a clear text signature or as merely providing redundancy for data transmission.

However, the Board considers feature (1.9) cannot be a basis for acknowledging inventive step:

2.1 The skilled person, when starting from document D7, could and would have arrived at feature (1.9) without exercising inventive skill in view of the business requirement to transmit payment data in a secure manner to the manufacturer of the integrated circuit. In this context, the board notes that in accordance with the established case law of the boards, when assessing inventive step using the problem/solution approach, an aim to be achieved in a non-technical field (such as the business need mentioned above) may legitimately be added to the problem as a constraint to be met (see decisions T 641/00, OJ EPO 2003, 352; T 154/04, OJ EPO 2008, 46).

Moreover, it was well known to use digital signatures or the like to enhance the security of messages. The board notes that the contested patent does not disclose any details on how the signature is calculated. It discloses merely which data is used to calculate the signature. In view of this, from the patent specification, it is assumed that it would have been well known to calculate signatures. Since the skilled person would have considered adding a signature to the payment data to be transmitted to the server in D7 as a matter of routine development, it also would have been immediately clear that the signature has to be generated on the side of the sender of the message, i.e. the computer (integrated circuit), and not on the side of the server, as the signature needs to be sent with the payment data. Consequently, feature (1.9) of claim 1 cannot be a basis for acknowledging inventive step.

Therefore, the Board concluded that the subject-matter of claim 1 (main request) does not involve an inventive step (Article 56 EPC). Further, none of the auxiliary requests was admissible. The appeal was dismissed.

More information

You can read the whole decision here: T 2010/17 (Selection of an available memory size/THALES DIS FRANCE) of 9.6.2021 of Technical Board of Appeal 3.5.07.

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Simultaneously generating a winning outcome in game machines: non-technical

In this decision, relevant for gambling machine manufacturers, the European Patent Office refused to grant a patent relating to simultaneously generating a winning outcome in game machines. Here are the practical takeaways of the decision T 0941/17 of August 11, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The choice of a specific game to be played is an administrative decision unrelated to any technical problems or considerations.

The invention

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

2.1 The claimed invention relates to a group of associated gaming devices, a method of operating them and an individual gaming device.

According to the application, it is desirable from time to time to have all the gaming devices in the group produce a winning outcome at the same time. Such an occurrence creates spontaneous enthusiasm with the players and draws attention to the gaming devices, increasing thus the chances that more users will start playing at those devices, increasing the profit of the devices’ owner.

2.2 For this to happen it is important that all the gaming devices generate a winning game outcome at the same time. …

2.3 The forced winning outcome is generated by a lottery drawer, irrespective of the game played at the machine. …

2.4 By using synchronised clocks and identical databases and pseudo-number generators in the associated gaming devices the simultaneous occurrence of the winning outcomes in all the devices can be achieved (see pages 1 to 3 of the published application).

Fig. 1 of WO 2013/045276 A1

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

At the appeal stage, the Board in charge as a first step assessed the distinguishing features over the closest prior art identified during examination:

3.3 Comparing claim 1 with D5, the features distinguishing the claimed group of associated gaming devices from D5 appear to relate to how the forced winning game outcome is generated.

In claim 1 there is a lottery drawer using a pseudo-random number generator and a comparator. A database contains entries with lists of winning numbers for a specific time interval, like 24 hours, for example. At predetermined times, a seed from the specific database entry is provided to the pseudo random number generator, which generates a pseudo random number. At the same time a winning number is drawn from the list of winning numbers of the database entry. The pseudo random number and the winning number are fed to the comparator and, when the two numbers much, a winning signal will be generated.

In D5 there is no information about how the winning outcome is achieved or what game it relates to.

However, the Board considered the solution provided by the distinguishing features (a lottery drawer) to be non-technical since they would only describe a lottery game:

3.4 The board considers that the use of a draw of a lottery as a way to generate a winning outcome does not address any technical problem. In the board’s view, the choice of a specific game to be played is an administrative decision unrelated to any technical problems or considerations.

3.7 The skilled person (a computer programmer, expert in gaming devices) would seek for a way to implement the winning event in the gaming devices of D5. The idea to use a lottery drawer and the rules of the “manipulated” lottery draw are not technical features and will be given to the skilled person for implementation in the associated gaming devices of D5. The skilled person would carry out this task in an obvious manner using only common general knowledge, especially since no details are provided in the application that would indicate particular technical problems to be solved or technical considerations to take into account in the implementation of the lottery drawer.

Against this assessment, the appellant argued as follows:

3.8 In its letter of 23 April 2021 the appellant put forward an argument related to the event list of D5. Making reference to paragraphs [0006] and [0007] of D5 the appellant argued that the event list in the gaming machines of D5 comprises a finite list of events to occur in specific points in time. When the point in time of the last event in the list is reached, the event list must be replaced.

In contrast to that, in the claimed invention the lottery drawer used entries from a database to create the winning events using a pseudo random number generator. The events in the database did not define a series of fixed points in time. Rather, the series of the sequential entries in the database would wrap around to the beginning when the end of the entries in the database was reached (see lines 30 and 31 on page 4 of the published application).

The use of draw of lottery in the claim, thus solved the technical problem of making the event list of D5 reusable so that the present event list need not be replaced by a new event list when its end is reached.

In response, the Board in charge explained that this line of argumentation would not relate to the claimed invention since the claim would only specify how a winning event is generated on the plurality of game devices at the same time and would thus be silent about reusing an event list. Furthermore, the arguments of the appellant would be technically incorrect:

Secondly, even if the appellant’s argument is taken into account, the board notes that it is not correct that the sequential entries (30) do not define fixed points in time. As it is explained in the application (see page 4, lines 17 to 21), the sequential entries (30) correspond to a predetermined time interval, like 24 hours, and with the setting of a first date for the first entry, they correspond to specific dates (see also Figure 3). Each entry 30 comprises a list of winning numbers to be drawn on the specific date (time interval).

Sine the additional features added to claim 1 according to the auxiliary requests were considered to be disclosed by the closest prior art document, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0941/17 of August 11, 2021

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Editing 3D content: non-technical

This decision relates to a European patent application for a system and method that enables users without any skills specific to 3D software to edit 3D content. Here are the practical takeaways from the decision T 2448/16 () of 25.6.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The cognitive meaning of providing/storing language information as well as adjusting, placing and generating an image do not have any non-obvious technical implication for the functioning of the computer device and its interactive graphical user interface (GUI). The underlying technical operation can be carried out by any conventional computer.

The invention

The application relates to positioning a consumable in a 3D simulation, e.g. of a virtual room. A consumable may be an image, a video, a text or any kind of software element. It takes trial and error to position a single 3D consumable. This is difficult because there are six variables that must simultaneously be adjusted (x, y, z, thetax, thetay, and thetaz). Therefore creating a great amount of content in a short period of time is impractical. It is an object of the invention to provide a system for placing content in a 3D environment onto a 2D picture wherein the user does not need to be intimately familiar with 3D tools. The invention proposes hardware and a graphical user interface (GUI) with different tools, e.g. a projection matrix, for placing and adjusting the consumable via a “drag and drop” operation.

Fig. 7 of EP2394240

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The Board in general agrees with the reasoning of the Examining Division that many of the features (A)-(M) of system claim 1 relate to non-technical features where technical character only arises because a general purpose computer system is claimed in order to automate the method steps.

3.1.2 The cognitive meaning of providing/storing language information as well as adjusting, placing and generating an image do not have any non-obvious technical implication for the functioning of the computer device and its interactive graphical user interface (GUI). The underlying technical operation can be carried out by any conventional computer (see Fig. 1 of the application).

3.1.3 Furthermore, the method steps are mainly of administrative nature and neither the claim nor the application as a whole describe any technical interaction between these steps and the technical features which would go beyond the mere automation of the steps relating to administration (see T 641/00, G 3/08, G 1/19, “Case Law of the Boars of Appeal”, 9th edition, I.D.9.1.2- I.D.9.1.4).

For the problem-and-solution approach, D1 (US 6 628 279) was considered as the closest prior art, because it discloses a 2D image of a 3D object. Additional 2D/3D objects can be placed in a 3D environment.

According to the Board, D1 does not disclose features (E) to (F).

As to features (I) to (J) the Appellant argued that D1 was silent on any projection matrix being clipped and scaled by a projection matrix component. However, the Board was not convinced:

3.3.5 Also in this respect, the Board is of the opinion that the wording of these features is rather broad and not sufficiently specific in order to make a distinction over the disclosure of D1. A “projection matrix” is equivalent to a matrix of coordinates and the grid of the designed objects. A “projection matrix” is a mathematical concept …

…

3.3.8 Therefore, the Board is of the opinion that the term “projection matrix” of claim 1 refers to the well-known fundamental mathematical concept of construing 3D objects based on a 3D matrix. The matrix goes in general in perspective view to a single point in infinity such that all objects maintain perspective relative to the 3D image. This concept is known in painting since several hundreds of years. An equivalent concept is used in D1 in order to construe a 3D representation of a house in a 3D coordinate system maintaining perspective relative to the 3D image (feature (M)). The 3D coordinate system, the coordinates of the house/consumables and the grid forming the structure of the house/consumables in D1 therefore can be considered as a “projection matrix”. D1 therefore discloses features (I) to (J) and (M).

In the end, only features (E)/(F) were considered as the distinguishing features, which were found obvious by the Board:

3.5 Effect – Problem

These features have the effect that the language of the CAD software and specific consumables can easily be changed.

3.6 Obviousness

3.6.1 As to features (E)/(F) the description of the present application does not provide any specific detail, effect or technical problem solved. Fig. 25 of D1 shows a standard PC. Such PCs require a standard operating system. The operating language of any operating system (Windows, iOS, etc.) and applications can in general be changed in the options.

3.6.2 It is a normal option that the computer system of D1 comprises a parameter, which sets the language to a preferred language, e.g. English. Such a parameter is a common option and is well-known in the art. It is furthermore a normal option that the language parameter can be changed for specific software elements (consumables).

3.6.3 Therefor the Board is of the opinion that the subject-matter of the Main Request does not involve an inventive step within the meaning of Article 56 EPC.

Therefore, the Board concluded that the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC). The appeal was thus dismissed.

More information

You can read the whole decision here: T 2448/16 ()of 25.6.2021 of Technical Board of Appeal 3.4.03.

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Controlling an avatar: non-technical

In this decision, which might be interesting for game developers, the European Patent Office refused to grant a software patent on a method for controlling an avatar. Here are the practical takeaways of the decision T 3033/18 of August 2, 2021 of Technical Board of Appeal 3.2.04:

Key takeaways

A framework which only specifies game rules has to be considered as a purely abstract, mental construct that cannot contribute to inventive step.

The invention

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

3.1 The present invention relates to the control of an avatar (self-role in the words of the claim) having virtual action parts (limbs) in a virtual environment.

Fig. 2 of EP 2 674 204 A1

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

The present application was rejected by the Examining Division due to lack of inventive step. At the appeal stage, the appellant argued that the following two aspects are not disclosed by the closest prior art searched in the first instance:

1) wherein while the self-role is not sitting nor lying during the virtual action in the virtual environment, movement morphology of the self-role is different and not similar with movement morphology of the user, and wherein the user’s part supported by the operation position is different from the self-role’s part supported by the virtual environment, and further the user remains at the operating position while performing the micro-actions required for controlling the virtual action of the self-role and

2) an action range of the virtual action part of the self-role has a plurality of enlarging proportions at different times with respect to an action range of the associated kinetic part of the user (i.e., the same user part).

According to the appellant, each of the two aspects provides for a separate technical advantage:

The advantageous effect of the distinguishing feature 1 is that, since the user’s part supported in the operation position is different from the self-role’s part supported in the virtual environment, the invention does not require the direct mapping of the actions of the user to the actions of the self-role. Furthermore, the self-role is not bound by the virtual environment as the user is by their physical environment (see paragraph [0063] of the application, “the user can control the self-role perform a back bend action as shown in FIG. 3 while performing a punch action.”).

The distinguishing feature 2 has the advantageous effect that it presents more freedom for the user part when controlling the virtual self-role part.

The Board agreed in that the claimed subject-matter implies technical means required for performing the claimed method, e.g. means for obtaining the user’s action in the physical world which are then used for controlling the avatar. However, the Board in charge further explained that aspects as mentioned above relating to gaming rules could only serve the explicit purpose of playing a game. Hence, these aspects could only be considered an abstract, mental construct.

3.2 The Board considers (see T0336/07, reasons 3.3.1) game rules to form part of “[…] a regulatory framework agreed between players and concerning conduct, conventions and conditions that are meaningful only in a gaming context. It is normally so perceived by the players involved, and as serving the explicit purpose of playing a game. As such an agreed framework it is a purely abstract, mental construct, though the means for carrying out the game play in accordance with such a set may well be technical in nature”. Moreover, (see T0012/08, reasons 4.6) game rules “form the abstract formal structure of a game describing the interplay between player actions and the choices offered within the game.”

3.3 A set of game rules thus determines inter alia how game-play evolves from beginning to end in response to player actions and decisions and the goals to be achieved to conclude game-play.

Sine the claimed subject-matter is a mixture of technical and non-technical features, the Board applied the well-known COMVIK approach for assessing inventive step:

3.5 In dealing with such “mixed” inventions, the Board adopts the approach as set out in T1543/06 (Gameaccount), reasons 2.1-2.9, which is based foremost on T0641/00 (OJ EPO 2003, 352). Thus, only those features that contribute to technical character are to be taken into account when assessing inventive step.

As a next step, the Board determined the distinguishing features of claim 1 of the main request as follows:

4.3 Therefore, the subject matter of claim 1 differs from D1 in respect of its features 3 and 5.

The first of these (feature 3), the Board summarises as:

– setting an enlarging proportion of virtual action parts to the user’s kinetic parts means setting the scaling factor by which a user’s performed action is to be scaled up on its avatar virtual action part.

The second of these (feature 5), the Board summarises as:

– Scaling up the obtained [user] actions by the enlarging proportion (scaling factor) to control the the self-role [avatar] in carrying out virtual actions.

– The self role [avatar] is neither sitting nor lying when performing.

– The movement morphology of the self-role is different from and not similar to the movement morphology of the user, and

– the user’s part supported by the operation position is different from the self-role’s part supported by the virtual environment (for example the seated real world user is supported by their buttocks, whereas the avatar is supported by the soles of its feet in the virtual game world, cf. published application paragraph [0059]).

– the user remains at the operating position while performing the actions required for controlling the virtual action of the self-role.

In the Board’s view, however, all the distinguishing features would only be governed by the rules of the game concerned. Specifically, scalling-up a real world movement performed by a user and mapping the movement to an avatar is only a convention of a game and thus cannot belong to a solution of a technical problem:

4.4.1 Taking a certain movement in the real world and scaling it up in the movement of an avatar will be perceived by the player as belonging to the framework and conventions of the game. They will know that, in the game context, when they wish the avatar to make a certain movement of its action part (for example a leg) in the virtual world, they need to move the corresponding part of their body (their leg) by a certain smaller amount in the real world. This scaling up of a real world movement in a game world is a typical game concept. For example, in a notorious joystick controlled game, a small joystick movement typically maps onto a much larger movement of an entity being controlled in the game world and the player understands this to be part of the convention of the game.

According to the Board, the problem to be solved could be formulated as follows:

4.6 This question is to be considered from the point of view of the skilled person – here a gaming software engineer – solving the objective technical problem of modifying D1’s man-machine interaction controlling method to implement the above rules.

Since this would be nothing more than a mere implementation of non-technical features of a game, the distinguishing features cannot contribute to inventive step.

Since similar objections would also apply to the auxiliary requests filed by the appellant, the Board dismissed the appeal.

More information

You can read the whole decision here: T 3033/18 of August 2, 2021

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Collection, analysis and transmission of data related to patient movements: non-technical

This decision relates to a European patent application directed at an apparatus and a method for collection, analysis and transmission of data related to patient movements. Here are the practical takeaways from the decision T 2084/18 (Suspicious behaviour/AIC) of June 18, 2021 of Technical Board of Appeal 3.5.05:

Key takeaways

The presentation of information might only exceptionally contribute to the technical character of the invention if it credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process.

The invention

The invention concerns a medication administration confirmation apparatus. The medication administration confirmation apparatus is configured to first display instructions to a user on how to properly perform desired medication administration steps. The medication administration confirmation apparatus is then configured to capture a video of the user to determine whether the user has correctly administered the medication. Determining whether the user has correctly administered the medication includes identifying indications of suspicious activity in the video.

Fig. 3 of EP2968074

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

D1 (WO 2011/062934 A1) was considered as the closest prior art. According to the Board in charge, the subject-matter of claim 1 differs from the above disclosure essentially in that a field of view narrower than the field of view captured by the video capture device is displayed on the display while the user is performing the particular sequence of actions. Indeed, D1 does not disclose that the field of view being captured by the video capture device is displayed to the user in full or in part.

However, the Board considered that this distinguishing feature does not produce any technical effect:

Displaying a video with a certain content does indeed relate to presentation of information within the meaning of Article 52(2)(d) EPC. A presentation of information might only exceptionally contribute to the technical character of the invention if it credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process, this being the applicable test (see T 336/14, Headnote; T 1802/13, page 10, second full paragraph; T 1091/17, point 1.7 of the reasons).

The appellant tried to argue that the distinguishing feature produces a technical effect based on decision T 115/85 as follows:

… the appellant put forward a further argument that the cognitive effect of trapping a user assisted (if not the user) the claimed apparatus itself in performing its task. To illustrate its argument, the appellant made analogies between the case in hand, in which trapped malicious users may try to frustrate the claimed apparatus by appearing as if they were taking their medicine, and various hypothetical cases, namely frustrating currency or passport counterfeiters by security features such as invisible ink, and turning off the power light of a recording security camera in order to let observers think that it is not recording. It argued that in all these examples a technical effect was achieved by obscuring the internal state of the apparatus. The case law of the boards of appeal recognised giving visual indications about the internal state of a system as technical. Similarly, refraining from giving such a visual indication or obscuring the internal state of an apparatus in order to frustrate malicious activity should also be a technical effect.

However, these arguments did not convince the Board:

Given the body of subsequent case law which discusses under which conditions or for which internal states of a system or apparatus this statement would be valid (see inter alia T 833/91, point 3.7 of the reasons; T 336/14, point 1.2.4 of the reasons, second paragraph), it is evident that statements with regard to technicality at this level of generality should be made with an abundance of caution. To take the example of “obscuring the internal state of a system”, suggested by the appellant, whereas this may give rise to a technical effect in certain cases, e.g. protecting a cryptographic computation against power analysis attacks as in T 556/14 (see points 13 and 14 of the reasons), in other cases it would not.

As for the present case:

… any alleged technical effect of the distinguishing feature of claim 1 should be judged on its own merits rather than by rules at this level of abstraction. The same holds true for the hypothetical examples given by the appellant. These examples suggest at least that the appellant considers that the cognitive effect leads to a technical effect of increased security, which is generally recognised as a technical effect. In the case in hand, however, the cognitive effect of the distinguishing feature, i.e. that the users may think that they are out of the field of view of camera, does not lead to increased security. It does not assist the apparatus of claim 1 in performing its assigned task, i.e. medication administration confirmation, either. On the contrary, the cognitive effect in the case in hand encourages the users to perform what the application calls “a suspicious or malicious act” and hence impairs the proper performance of the medication administration process.

Therefore, the Board concluded that the distinguishing feature does not produce any technical effect and that the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC). The appeal was thus dismissed.

More information

You can read the whole decision here:T 2084/18 (Suspicious behaviour/AIC) of June 18, 2021 of Technical Board of Appeal 3.5.05.

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Whitelist July to September 2021

In the 3rd quarter (July to September) of 2021, 4 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 0200/19: Disambiguation of text with an upper and lower case

The application underlying this decision relates to a handheld device with a reduced QWERTY keyboard. Based on the user input, the device automatically detects whether it was the intention of the user to write a word with an upper case or lowercase letter.

At the end of the appeal stage, the Board in charge ruled that enhancing the efficiency of disambiguation of a user input provided via a reduced keyboard of a handheld device is technical.

T1790/17: Controlling the manufacture of a product

This decision relates to the area of business methods, and more particularly to product (re-)design. The Board in charge was of the opinion that redesigning a product based on user feedback is purely business-motivated and thus non-technical.

However, according to the Board in charge, controlling the manufacture of a product with improved process data is a patentable invention as it includes technical features.

This decision is an excellent example of how the first hurdle (patent eligibility) of the EPO’s two-hurdle (COMVIK) approach can be cleared.

T 2251/13: Projection surface with built-in track pad

This is one of the rare cases in which a business-related invention was considered technical (T 2251/13). In detail, the invention relates to an interactive food and/or drink ordering system that can be controlled by means of a track pad. The gist of the invention is to project a menu onto the restaurant table.

Specifically the usage of the above-mentioned track pad was considered to solve a technical problem with technical means.

T 1422/19: Determining visibility of content on web browser by indirect measurement

In the area of graphical user interfaces, one of the EPO’s Boards of Appeal ruled that estimating the size of a browser’s viewport from within a cross-domain iframe by indirect measurement is technical. According to the decision T 1422/19, this is because the claimed method measures “raw” information about a running web browser and processes this information to produce an estimate of a technically meaningful parameter.

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Improving the classification of email content: non-technical

In this decision, the European Patent Office refused to grant a software patent on an efficient spam filter. Here are the practical takeaways of the decision T 2147/16 of September 7, 2021 of Technical Board of Appeal 3.4.03:

Key takeaways

A further technical effect must be proven and specifically and sufficiently documented in the disclosure of the invention.

The invention

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

2.1 The present invention has as object to provide an efficient spam filter. Spam messages present the inconvenience of “cluttering” the user’s email box, such that the user may easily overlook an important message in the flow of numerous spam messages. Spam messages take up a substantial volume of the email traffic. The share of spam includes more than 70% of global mail traffic. The spam messages accumulate in user mail boxes and take memory space and time to clean out (page 1, line 10ff of the description as filed).

2.2 Among the spam messages there are messages with computer viruses leading to harm of computer hardware/software and messages which lead to phishing resources that can be a cause of theft of passwords and personal data. Prior methods of spam detection, which typically involve grouping of messages by various criteria, often result in false positives, i.e., when the spam message ends up in the group of legitimate messages or when the legitimate message is grouped as spam.

To overcome these drawback, the application suggests a specific algorithm, inter alia including steps of hashing, clustering, weighting etc.

Fig. 1 of EP 2 811 441 A1

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

The first instance Examining Division refused the application due to the following reasons:

(a) a spam filter did not serve a technical purpose;

(b) it did not produce a relevant technical effect;

(c) it did not imply technical considerations.

Besides some minor inadmissible amendment and clarity issues, the Board in charge was mainly concerned with the assessment of technicality and inventive step. In this respect, the Board indicated that it agrees to the arguments provided by the Examining Division that the claimed method, particularly the distinguishing feature, lack technical character.

To defend its application, the appellant argued that the claimed method facilitated an improved performance of a computer and computer network and decreased on the end user computer the memory volume of the hard disk required for the legitimate electronic messages due to decreasing an amount of spam. Furthermore, the appellant stated that the method decreased a volume of the email traffic to the end user computer and that it decreased a load for the processor at the end user computer:

5.3.6 The Appellant argued that in the proposed algorithm rather than processing all received electronic messages on each individual user computing device, the invention used a client mail server. Design and implementation of innovative algorithms and data structures went beyond a particular mathematical formulation of the task of classifying electronic messages. The invention utilised a cluster rating system to obtain and analyse metadata of the unknown messages and classify these unknown messages using a cluster index tree data structure. The cluster rating was dynamically changing during the course of the filling of all clusters with various metadata of incoming electronic messages. The invention analysed mass messages sent by various sources over time and updated cluster ratings and therefore allowed to classify unknown messages more accurately. The method therefore facilitated an improved performance of a computer and computer network. Therefore, the method achieved the technical effects mentioned in section VIII above.

In response, the Board agreed to the appellants arguments in so far that the claimed algorithm may be optimized for the computer hardware and may thus have technical character. However, this would only be of speculative nature:

5.3.7 The Board agrees in so far with the arguments of the Appellant as the combination of comparing digital text content by similarity preserving hashing and dynamic cluster rating may be considered an algorithm optimised for the computer hardware and may have a technical contribution. However, this mere assumption is not sufficient. …

According to the Board, to be patentable, an algorithm must fulfill the following three criteria:

(a) the implementation of an algorithm in a method for filtering spam messages must have a proved further technical effect or specific technical considerations;

(b) such further technical effect must be specifically and sufficiently documented in the disclosure of the invention and be reflected in the claim wording;

(c) the algorithm must serve a technical purpose.

Concerning criterion (a), the Board stated that specific details as to how an algorithm is implemented in practice and how the load is reduced must be provided in order to give evidence that the algorithm has any further technical effect. However, the present application did not do so:

5.3.11 The present invention, page 19, lines 1 to 8, discloses that the cluster size has to be optimised in order to reduce the load on the computer. However, further details are not provided, for example, the range of the optimal cluster size, relevant parameters, the amount of memory saved or the ratio of increased speed.

With respect to criterion (b), the Board arrived at the conclusion that the application failed to provide any details how the alleged further technical effect is achieved:

5.3.14 However, the present invention does not provide sufficient and specific disclosure, such as parameters, how the algorithm is optimised for the computer, nor is this reflected in the claim wording.

5.3.15 The Board is of the opinion that any further technical effect has to be specified and sufficiently disclosed in the invention and that the claims must comprise the specific features which contribute to the further technical effect of the invention.

Finally, also the third criterion (c) was considered not to be fulfilled since the claimed method fails to serve a technical purpose:

5.3.18 The Board is of the opinion that, if the algorithm claimed in the present invention depends on the preferences of the user, the purpose of the claimed method may be considered non-technical. Spam filters in general need a human conditioning for training an algorithm which kind of emails should to be classified as spam messages and which kind of emails should be kept in the mail box. This depends on the individual user preferences, …

Against this background, the Board concluded as follows:

5.4.2 According to G 1/19 (reasons 121) algorithms first of all define (non-technical) constraints to be considered in the context of the COMVIK approach (T 0641/00). Depending on whether they contribute to any technical effect achieved by the claimed invention, they may or may not in fact be taken into account in the inventive step assessment.

5.5 Obviousness

5.5.1 As discussed above a special technical effect related to the algorithm as defined in the independent claim is not sufficiently documented in the present application and is not reflected in the claim wording. The claim therefore defines a mere implementation of an algorithm without any additional special technical effect. This mere implementation of an algorithm cannot be considered involving an inventive step.

At the end, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 2147/16 of September 7, 2021

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