Author Archive

Estimating departure time: non-technical

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

Key takeaways

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

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

The invention

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

 

Figure 1 of EP 2 491 341 A1

Here is how the invention was defined in claim 1:

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

Is it patentable?

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

Feature 1.3

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

Features 1.4 and 1.5

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

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

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

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

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

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

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

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

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

More information

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

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Flight simulators: partly technical

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

Key takeaways

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

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

The invention

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

Figure 1 EP2642467

Here is how the invention was defined in claim 1:

  • Claim 1 (Auxiliary Request 1)

Is it patentable?

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

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

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

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

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

Feature (a)

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

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

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

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

Features (b) and (c)

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

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

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

Inventive step

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

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

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

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

 

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

More information

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

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Optimized load management: technical

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

Key takeaways

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

The invention

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

Figure 1 of EP2695270

Here is how the invention was defined in claim 1:

  • Claim 1 (granted)

Is it patentable?

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

However, the Board in charge had a different opinion:

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

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

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

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

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

Hence, the patent is maintained as granted.

More information

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

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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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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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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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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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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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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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Projection surface with built-in track pad: technical

This decision relates to an European patent application for an interactive food and/or drink ordering system and method. Here are the practical takeaways from the decision T 2251/13 (Projection surface with built-in track pad/ORDAMO) of 13.4.2021 of Technical Board of Appeal 3.5.01:

Key takeaways

The fact that the problem is formulated as “how to provide an alternative” does not automatically mean that the solution is obvious.

The invention

The invention concerns an interactive food and/or drink ordering system in a restaurant. The main idea is to project a menu onto the restaurant table (Figure 1). The table has a built-in track pad allowing the guest to select and order food and/or drinks from the menu.

Fig. 1 of EP2102801

The system comprises a projector that is mounted above the table and connected to a computer (Figure 15). Also the track pad is connected to the computer via a short range wireless network such as Bluetooth.

Fig. 15 of EP2102801

Here is how the invention was defined in claim 1 in the final request during the oral proceedings:

  • Claim 1 (main request)

Is it patentable?

Initially, the Board of Appeal agreed with the Examining Division that the subject-matter of (old) claim 1 lacked of inventive step (Article 56 EPC) in view of D1 (US 2005/273345) in combination with D3 (Ammer A: “Projector-Camera System for Flexible Interactive Projections”, 2005, Stockholm University, Stockholm, Sweden, XP002470986).

The appellant did a good job convincing the Board of Appeal and could submit a new main request with amended claim 1 during the oral proceeding.

New claim 1 submitted during the oral proceedings survived the COMVIK test:

3.1 The examining division assessed inventive step starting from D1 which relates to a food and drink ordering system comprising a computer terminal.

In the Board’s view, however, D3 is a better starting point because it is related to a projector-camera system for interactive projections, which is technically closer to the claimed invention. In other words, D3 requires fewer technical modifications to arrive at the subject-matter of the claims.

D3 explicitly mentions in paragraph 1.1 on page 2 that the projector-camera system may be used on a restaurant table to show the menu. However, even without this, D3 would be a good starting point, because the use of the projector-camera system in a restaurant to show the menu is a non-technical aim which does not contribute to inventive step under the “Comvik approach” (see T 641/00 – Two identities/COMVIK). Therefore, it is irrelevant whether or not this is disclosed in the prior art. What counts is the technical disclosure.

3.2 It is common ground that the invention in claim 1 differs from D3 by (i) the ordering of food and/or drinks from the menu, and (ii) a track pad that is “built into the [projection] surface”.

In D3, the user interacts with the system by using his fingers (paragraph 3.1 on page 8). The system makes use of a fingertip finding algorithm (paragraph 4.1) to identify the user’s interaction.

3.3 In its preliminary opinion, the Board considered that the ordering of food and drinks (i) constituted an obvious implementation of a non-technical requirement. The appellant did not contest this. Instead, the feature that was given patentable weight was the second one (ii), namely the built-in track pad.

3.4 The appellant argued that the built-in track pad provided a clearer projection surface, because the projected image was not obstructed by the user’s hand as in D3 (see Figure 7).

The Board is not convinced that the invention has this effect, because claim 1 does not exclude that the track pad covers parts of the projection area. Furthermore, a fingertip interface could be designed such that the user points at projected buttons or the like which do not contain any information. Therefore, the Board does not see that the built-in track pad has any technical effect beyond providing an alternative to the fingertip interface in D3.

3.5 The question that remains to be answered is whether this would have been an obvious alternative. The fact that the problem is formulated as “how to provide an alternative” does not automatically mean that the solution is obvious. Also the fact that the alternative, here a track pad, was well known per se is not enough. There has to be some hint or incentive, in the prior art, or in the skilled person’s common general knowledge, to provide the alternative.

3.6 In fact, the invention is not merely the use of a track pad as an input device. It involves building the track pad into a table top or a similar surface that is used as a projection surface. Although, as the examining division pointed out, there is no detailed implementation of this feature, the Board judges that “built into” implies at least that the device forms an integral part of the table top structure.

The examining division considered that this was a “straightforward constructional detail”. However, they did not refer to any prior art that disclosed such a built-in interface. Nor can this be said to be common knowledge.

3.7 At the oral proceedings it was discussed whether the idea of building something into a surface, e.g. to make it more permanent or less obtrusive, could be a routine design skill and part of the skilled person’s “mental furniture”, discussed for example in decision T 190/03 – Multiple subtitles/EDICO at point 16.

Although this seems plausible, in the end the Board judges that on balance this is not the case. The required amendment and design skill is in the field of mechanics. However, the skilled person in this case is a specialist in computer systems who would not necessarily have these routine design skills and would not have considered modifying a table top structure in order to provide an alternative input interface without a further hint.

Therefore, claim 1 was considered to involve an inventive step. At the end, the case was remitted to the Examining Board to grant a patent.

More information

You can read the whole decision here: T 2251/13 (Projection surface with built-in track pad/ORDAMO) of 13.4.2021 of Technical Board of Appeal 3.5.01.

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