Author Archive

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 The patent had been revoked as an outcome of the opposition proceedings.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The patent had been revoked based on the decision from the Opposition Division that claim 1 was not novel over D7.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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Guiding the user to a shop: non-technical

This decision relates to an European patent application for a shop terminal and an information processing server for guiding the user to a shop. Here are the practical takeaways from the decision T 0589/17 (Guiding the user to a shop/SONY) of 20.4.2021 of Technical Board of Appeal 3.5.01:

Key takeaways

Any effects compared to a hypothetical, alternative computer-implemented business method cannot be taken into account for the purpose of assessing inventive step in accordance with the problem and solution approach.

The invention

The invention concerns a system for sending customers (users) between shops in a franchise group. The system comprises a server (2) and a plurality of shop terminals (8), one in each shop (81). The basic idea is the following: when the user purchases something with his mobile phone in a first shop (e.g. Yamada Set Meals in Figure 1), he is “guided” to a second shop (e.g. Cacao Coffee Shop). If the user purchases something in the second shop, he receives a bonus in his mobile payment account.

Fig. 1 of EP2221759

Claim 1 of the main request is directed to the server (2) in Figure 1, here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

At the first instance, the examining division considered that features distinguishing the claimed invention from the prior art disclosure D1 (US 2006/144927) were either non-technical or obvious.

During the appeal, the appellant had tried to argue why some of the technical features had been overlooked:

D1 merely described using the IC chip for making an electronic payment, not using the IC chip as a means for tracking the user’s progress from a first shop to a second shop.

By using the IC chip to track the user, rather than requiring the user to present a coupon received from the first shop, any need for either the user or the shopkeeper in the second shop to perform any specific actions was avoided. Consequently, the time for processing the transaction in the second shop was reduced.

The business requirements provided by the notional business person did not specify that the processing of identification information should take place at a server rather than at the shop terminal. The same applied for the means for paying the bonus. Whether the bonus was provided to the customer by the second shop’s terminal or to the customer’s telephone by the server was a technical choice of the technically skilled person.

These arguments are however not so convincing.

The Board again adopted the well-known COMVIK approach to decide this case (i.e. by taking into account only the technical features in the assessment of inventive step. The non-technical features which make no technical contribution are instead considered as being part of the formulation of the technical problem to be solved in the framework of the problem and solution approach.):

D1 does not disclose that the server receives and processes identification information and guidance completion information as in claim 1.

In claim 1 of the main request, the identification information read from the IC chip included in the user’s phone is used to determine that the user has made a purchase in the second shop. D1 merely discloses the use of an IC chip for making payments and for providing identification.

Furthermore, D1 does not disclose that the server transmits monetary value changing information to the user’s phone.

In the communication accompanying the summons to oral proceedings, the Board considered that sending a customer from a first shop to a second shop and giving the customer a bonus when purchasing something in the second shop was a business idea. In the Board’s view, this idea already implied some form of checking whether the customer had made the purchase in the second shop, as well as paying out the bonus directly to the customer in monetary form rather than providing a discount in the second shop. The problem to be solved was thus considered as how to implement the business idea on the system of D1.

The relevant criterion for assessing technicality is whether the feature or features in question provide a technical effect over the prior art chosen as starting point. Any effects compared to a hypothetical, alternative computer-implemented business method cannot be taken into account for the purpose of assessing inventive step in accordance with the problem and solution approach.

While the business person cannot require the use of a server which is a technical feature, he can specify that a certain task be performed by a central administrative entity. In the present case, the use of a central entity for handling the bonus scheme is an organisational matter related to the franchising business model. This is in contrast to the server in T 1463/11 which centralised the management of plug-ins i.e. software components.

Starting from the disclosure of D1 and given the task of implementing the business idea defined above, the Board is of the view that the skilled person would have used the server or servers in D1 for comparing information received from the source POS and the destination POS in order to check whether the guidance had been completed. Although D1 does not disclose payments using a mobile phone, this was known at the priority date, and it is not presented in the present application as making an inventive contribution (see paragraphs [0009] to [0012]).

Furthermore, the skilled person would have considered using the same mobile payment system for paying out the bonus, and given the requirement of using a central entity for paying the bonus directly to the user, the skilled person would have used the server to transmit “monetary value changing information” to the user’s phone.

Even if the payment of the bonus by a central entity directly to the user’s account was not part of the business requirements, the Board considers this to be at least an obvious alternative to using the second shop terminal to top up the mobile payment account.

Therefore, claim 1 was considered not to involve an inventive step. Since none of the auxiliary requests could overcome this objection, the appeal is dismissed.

More information

You can read the whole decision here: T 0589/17 (Guiding the user to a shop/SONY)of 20.4.2021 of Technical Board of Appeal 3.5.01.

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Converting loyalty points based on a commonly used reference currency: non-technical

The application underlying this decision relates to payment cards, and more specifically to the conversion of loyalty points based on a commonly used reference currency, such as US Dollar. However, the EPO considered this non-technical. Here are the practical takeaways from the decision T 2534/17 (Payment module/RAKUTEN) of May 10, 2021 of Technical Board of Appeal 3.5.01:

Key takeaways

Features making no technical contribution to an invention can be legitimately incorporated into the formulation of the technical problem.

A technical effect has to be achieved over the entire scope of a claim.

If a technical effect is only a bonus effect, it cannot count towards inventive step.

The invention

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

1.1 The invention relates to a payment module, such as a smart card, storing pre-loaded electronic money which is used for purchasing goods or services (paragraph [0002] of the published application).

1.2 Known cards subtract a payment amount from the amount of electronic money stored on the card. If the stored amount is below the required amount, the payment fails. Even smart cards, storing electronic money of different currency types, such as Euro, Dollar, or Yen, cannot compensate a shortage of one of the currencies with the other currencies stored on the card ([0004]).

The invention seeks to solve this problem by using the total amount of electronic money of all available currencies on the card ([0005]).

1.3 The solution involves using a reference currency (“utility electronic value” in the claims). If payment in one currency (“electronic value”) is required, e.g. Euro, and the Euro balance on the card is insufficient, the deficit is taken from the reference currency. If, however, the balance of the reference currency is also insufficient, the reference currency is replenished from one or more of the remaining currencies (“electronic values”, Figure 9B and [0086] to [0096]).

1.4 This idea is implemented by a plurality of applications (or “apps”) on the card; one for each of the electronic values, and one for the utility electronic value.

Fig. 4 of WO2012/147969 A1

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

  • Claim 1 (sixth auxiliary request; numbering added by the Board)

Is it patentable?

In the first instance, the Examination Division refused the application due to lack of inventive step and added subject-matter. To overcome these objections, the appellant filed seven auxiliary requests at the appeal stage.

Concerning the sixth auxiliary request, the appellant argued as follows:

The appellant argued that while the payment module of claim 1 was motivated by the business idea to use the total amount of money on a card for payment, it provided a non-obvious technical implementation of this idea. Contrary to the examining division’s view, the utility electronic value and the utility electronic value app achieved technical effects and, therefore, were not part of the business method, but of the technical solution that had to be examined for inventive step.

First of all, the Board in charge expressed that it considers the embodiment of Fig. 17 of prior art document D3 as the closest prior art to the claimed subject-matter:

3.4 However, D3 discloses a multi-electronic money card for different currencies, which can be used for payment (Figure 17, [0312], [0325]) and means for converting between them ([0320]). The Board considers this more specific teaching to be a good starting point for assessing inventive step.

Afterwards, the Board identified two distinguishing features:

3.8 Claim 1 therefore essentially differs in that:

i) the conversions between different electronic values are carried out via a utility electronic value, whose balance is stored in and updated by the utility value app UA (feature 2, and implementation in features 3 to 7);

ii) the app storage areas are encrypted using the same keys as those employed for the authentication (features 10 and 12).

Concerning difference ii), the Board considered the distinguishing feature to be an obvious measure applied by the skilled person:

3.14 Concerning difference ii), the Board is of the opinion that encrypting the apps’ storage areas does not achieve any surprising or advantageous technical effect, but merely serves its well-known purpose of protecting the stored data. The Board further considers that in view of the public key encryption scheme for mutually authenticating the apps suggested by D3 ([0115], [0186]), it would have been an obvious choice for the skilled person to use the already available public keys of the applications to also encrypt the data in their respective storage areas.

Therefore, difference ii) does not involve an inventive step.

With respect to difference i), the Board arrived at the conclusion that this feature lacks a technical character:

3.9 Concerning difference i), the Board agrees with the examining division that the idea of using a utility value for converting between currencies may arise purely from non-technical business-related considerations and cannot recognise any technical problem which might be solved by this feature. …

To counter this argument, the appellant explained that the claimed subject-matter would lead to a reduced amount of memory:

3.10 The appellant argued that the utility electronic value was conceived with the aim to reduce memory usage. When implementing the business idea of the invention, i.e. using the total amount of electronic money for payment, the straightforward solution would be to allow each app to replenish its account by directly communicating with the other apps. In this setting, each app would have to store the encryption keys of all other apps, which would result in a total of N(N-1) stored keys. By using the utility electronic value app, the invention needed to store only N keys.

3.11 The appellant also argued that the invention needed less memory for storing the exchange rates: it had to store only N exchange rates (between the utility electronic value and each of the electronic values), whereas D3 had to store exchange rates for all pairs of currencies.

However, the Board in charge did not follow these arguments and outlined that the claimed invention is only motivated by non-technical considerations. Notably, the Board further argued that any reduction in memory usage is merely a bonus effect, which does not count towards inventive step. Finally, the Board outlined that the alleged technical effect is not achieved over the entire scope of the claim:

As reasoned above (point 3.9), the Board does not consider that the idea of the utility electronic value is motivated by technical considerations. It follows that the necessary exchange rates between this value and the other currencies also do not contribute to the technical character of the invention. Any reduction in memory usage resulting from the exchange rates is merely a bonus effect, which does not count towards inventive step.

The Board also notes that this effect is not achieved over the entire scope of the claim. In the case of two currencies (i.e. N = 2), for instance, D3 would need to store a single exchange rate between the two currencies, whereas the invention would need to store two rates for exchanging between each of the two currencies and the utility electronic value.

Against this background, the Board concluded that the non-technical feature according to consideration i) could be used for formulating the technical problem. The solution to this problem would then have been obvious to the skilled person:

3.12 According to the COMVIK approach (T 641/00), features making no technical contribution to the invention can be legitimately incorporated into the formulation of the technical problem. In the present case the problem therefore is to implement the concept of the utility electronic value and use it for converting between electronic values within the payment module of D3.

The Board judges that it would have been an obvious choice for the skilled person to implement the utility value and the required exchanges within the data exchange application of D3 as this application already mediates currency exchanges. The skilled person would thereby have arrived at an arrangement falling within the scope of the utility electronic value app UA of claim 1 in a straightforward manner. The calculations involving the first and second reload amounts are a direct implementation of the non-technical decision about the policy for replenishing the various balances of the currencies. Therefore, difference i) does not involve an inventive step.

As a result, the appeal was dismissed.

You can read the whole decision here: T 2534/17 (Payment module/RAKUTEN) of May 10, 2021.

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Using file prevalence to inform aggressiveness of behavioral heuristics: non-technical

This decision relates to an European patent application for a method for adjusting an aggressiveness level to use in behavior based heuristics malware detection. Here are the practical takeaways from the decision T 2386/16 (MALWARE DETECTION USING FILE PREVALENCE TO INFORM AGRESSIVENESS OF … of 27.4.2021 of Technical Board of Appeal 3.5.01:

Key takeaways

A mere heuristic approach cannot reliably provide a technical effect.

The invention

The invention concerns behavior based heuristics malware detection. Instead of using a static approach, the invention suggests to have varying dynamic measures to be applied to a file dependent on how likely the file is considered to be infected. The more likely a file is to contain malware, the stronger will be the measures. The “aggressiveness level” of the malware detection is dynamically adjusted based on the “prevalence rate” of a file such that lower prevalence files are treated more aggressively than higher prevalence files.

Fig. 3 of EP2494446

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

D7 (US 2007/0079379 A1) was discussed as the closest prior art for claim 1.

Since the expressions “prevalence rate” and “aggressiveness level” do not have a specific technical meaning in the art and the claim does not provide its own definition, the Board has a broader interpretation of these expressions than argued by the appellant. Regarding the expression “prevalence rate”:

During oral proceedings the appellant further argued that in contrast to the claimed invention D7 did not disclose an adjustment of the analysis of the file based on the prevalence rate. The Board does not agree, because D7 discloses the use of stricter scanning rules at later times of the outbreak (see last paragraph of point 2 above). D7 explicitly discloses a re-scanning step of messages with an adapted set of rules for a virus outbreak that are initially broad and of which the scope is later narrowed down (see paragraph 248 of D7). As a result, messages that matched the earlier rule set may not match the revised rules, and become known false positives. The approach in D7 attempts to release known false positives automatically in response to a rule update, without intervention. This corresponds to the present invention as described in paragraphs 25 and 26 of the description, which is covered by claim 1.

Regarding the expression “aggressiveness level”:

D7 suggests varying measures for isolating files or stopping the execution of files such that they can be further analysed. The Board regards this as an aggressiveness level to be used in a behaviour based heuristics malware detection.

D7 discloses that when the virus score value is greater than or equal to a specified threshold, the message is stored in a quarantine queue without immediately delivering it to the recipient account (see [0045]). In addition, a variable quarantine time is suggested (see [0229]). A minimum quarantine delay is applied to messages that are less likely to contain a virus. Thus, the quarantine time is coupled to the probability that a message contains a virus. The Board considers this to be at least equivalent to the aggressiveness level in the context of claim 1.

At the end, the discussion was focused on the distinguishing feature “singleton files”:

Claim 1 further specifies “singleton files”, which have not been seen by the computer before and have the lowest prevalence rate. Those singleton files are treated with the highest aggressiveness level.

Such “singleton files” are not explicitly disclosed in D7. The Board is however not convinced that treating files having the lowest prevalence rate (singleton files) more aggressively involves an inventive step. In the Board’s view, this does not necessarily improve the virus detection over D7, which already suggests that the aggressiveness level is coupled to the probability that a message contains a virus.

Defining singleton files as the files most likely to contain malware is considered to be a mere heuristic, which does not reliably provide a technical effect. Also D7 uses heuristics. Depending on probabilities and subjective experiences, the skilled person would consider many heuristic approaches to define such files within the general idea of applying the highest aggressiveness for files most likely to contain malware.

In view of this the Board considers the feature of treating singleton files the most aggressively to be an obvious choice for the skilled person.

Therefore, claim 1 was considered not to involve an inventive step. Since none of the auxiliary requests could overcome this objection, the appeal is dismissed.

More information

You can read the whole decision here: T 2386/16 (MALWARE DETECTION USING FILE PREVALENCE TO INFORM AGRESSIVENESS OF … of 27.4.2021 of Technical Board of Appeal 3.5.01.

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