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Evaluation of vehicle driving skills- non-technical, but, assisting driver to enhance the vehicle driving skills: technical

This decision concerns an evaluation of vehicle driving skills. In the first instance Examining division refused the application not inventive. The applicant argued the invention provides guidelines on which characteristics the driver shall focus first in order to enhance proper driving operation. The Board disagreed and considered the main request did not credibly assist the driver, as the driver had no idea how to interpret the result.

The applicant then amended the claims to include the message given to the driver to require enhancement of the score. The Board considered the feature credibly assists the driver in performing the technical task of proper operation of the vehicle (technical system) by a continued and guided human-machine interaction process in which instruction is given to the driver specifying how to enhance the vehicle stability.

Here are the practical takeaways from the decision T 2206/21 of October 28, 2022, of the Technical Board of Appeal 3.2.01.

Key takeaways

Assisting the driver in performing the technical task of proper operation of the underlying technical system – i.e. the vehicle – by prioritizing the enhancement of its vehicle stability driving skills with respect to the turning performance of the vehicle, and by a continued and guided human-machine interaction process in which instruction is given to the driver specifying how to operate, i.e. by enhancing the vehicle stability.

The fact that the driver can try to realize how to improve or worsen the overall evaluation result of its driving skills as displayed by changing its driving behaviour and check the output displayed goes beyond the method according to claim 1 and represents a mental activity of the driver as such.

The invention

The invention concerns the evaluation of vehicle driving skills. The vehicle, such as a motorcycle, is provided with sensors and increasing the vehicle stability score and the turning performance score cause enhanced driving skills.

However, in conventional systems, due to the method of determination, the driver is not always required to enhance both the vehicle stability score and turning performance score to the same extent throughout a course of enhancing the driving skills. Thus an improved driving score does not always indicate an improvement in all aspects (vehicle stability, turning performance).

The invention aims to improve the scoring to account for such incorrect determinations. This is achieved by decreasing the overall evaluation if the first value is lower than the threshold (previous determination), even if the second value is higher, and only increasing the overall evaluation if the first value is higher than the threshold.

  • Claim 1 of Main Request

Is it patentable?

In the first instance, the Examination Division refused the European patent application on the grounds that the claims lacked an inventive step in view of document D1 (WO 2013/099246) and document D2 (EP 2 517 952 A1).

The Board identified the distinguishing feature as follows:

1.3 However, in the method of D1 the overall evaluation is carried out by calculating a weighted sum of the first and second evaluation results on the vehicle driving skills (see para. 44 of D1). This calculation falls under a conversion function as in claim 1 which is inevitably stored in the memory of the apparatus of D1 and generated empirically or experimentally (feature c). According to the application, priority is given to the first evaluation result when it is lower than a threshold (with a negative contribution to the overall result of an improvement in the second result) and when the first evaluation is higher than a threshold an improvement of the second value contributes positively to the overall result (feature d).

Consequently and in contrast to the conclusions of the Examining Division, the method of claim 1 only differs from that of D1 on account of the feature defining how the overall evaluation result is obtained (feature d).

The Board then considered the distinguishing feature as non-technical of the following reason.

1.4 As correctly assessed by the Examining Division (see point 2.1.1.4.1 of the contested decision), this distinguishing feature is non-technical: it is of mathematical nature as it relates to calculated values or functions (Article 52(2)(a) EPC). Thus, the feature could only contribute to the acknowledgement of an inventive step if it provided a technical effect together with the other features of claim 1. It pertains to the case law of the Boards of appeal that the output of such calculated values (analogously to presentation of information, Article 52(2)(d) EPC) might exceptionally contribute to the technical character of an invention if it can be assessed that it credibly assists the user (i.e. the driver) in performing a technical task by means of a continued and guided human-machine interaction process (question related to “why” the content is presented – see T 336/14, point 1.2.4; T 1802/13 page 10, second full paragraph; T 1091/17 point 1.7). This cannot be acknowledged here for the following reasons.

The Board disagreed with the argument of the applicant as it considered the claimed effect was not credibly achieved:

1.5 The appellant formulated the technical task as being that of assisting the driver in operating the vehicle in such a way that a more appropriate operation of the vehicle is achieved. Further, the overall evaluation result that considers the first and second evaluation result as input represented the presentation of the internal state of a technical system (the vehicle), since the latter results inevitably related to the state of the vehicle. The method according to claim 1 provided thus an objective guideline, based on the measured data related to the state of the driving system, on which characteristics the driver shall focus first in order to enhance proper driving operation. By outputting the obtained overall evaluation result, the user was reliably guided to operate the vehicle in line with the priority established by the vehicle itself.

However, the overall evaluation result displayed in the output device and obtained from the conversion map and/or conversion function according to feature d does not contain any indications of which of the first and second results have been given a priority for its obtaining. Accordingly, the driver has no idea as to which characteristics of its driving he shall give more focus by simply reading the overall evaluation result output since he does not know how to interpret the result, as pointed out by the Examining Division in the impugned decision. The method merely obtains and displays an overall evaluation vehicle driving skills result according to a specific criterion applied to two evaluation results on vehicle driving skills based on unspecified measured data. No guidance nor feedback is presented, let alone in real time. The method does not provide any feedback on proper operation of the vehicle but only an overall evaluation on the driving skills.

The fact that the driver can try to realize how to improve or worsen the overall evaluation result of its driving skills as displayed by changing its driving behaviour and check the output displayed goes beyond the method according to claim 1 and represents a mental activity of the driver as such.

Finally, it cannot be said from the wording of claim 1 whether the overall evaluation result presents the state of the technical system “vehicle”. The overall evaluation result is obtained from the first and second evaluation results on vehicle driving skills and accordingly do not represent the state of the vehicle. Further, the first and second evaluation results are based on measured data. Such data is also not specified as being related to the state of the vehicle.

1.6 Consequently, the mathematical method and the output of its results according to claim 1 does not credibly assists the driver in performing a technical task by means of a continued and guided human-machine interaction process and accordingly lacks technical character.

Is the Auxiliary Request patentable?

However, the Applicant amended the claim in the Auxiliary Request (4A) to overcome the objection:

  • Claim 1 of Amended Request (4A)

The claim was amended by including the following features:

3.3 The subject-matter of claim 1 of auxiliary request 4A differs from the method of D1 or D2 on account of feature d mentioned above and further on account of the following features:

the conversion information defines the overall characteristic score (G) in such a way that the overall characteristic score (G) increases as the first evaluation result increases,

such that when the vehicle stability score (Sv) is lower than the threshold (b), a message is given to the driver to require selective enhancement of only the vehicle stability score.

The Board then agreed with the applicant that the feature now credibly achieves the technical effect:

3.4 The Board is satisfied that with this added features the method credibly assists the driver in performing the technical task of proper operation of the underlying technical system – i.e. the vehicle – by prioritizing the enhancement of its vehicle stability driving skills with respect to the turning performance of the vehicle, and by a continued and guided human-machine interaction process in which instruction is given to the driver specifying how to operate, i.e. by enhancing the vehicle stability.

3.5 The Examining Division argued regarding the above mentioned feature that the calculation of the overall score was not linked to the feedback message given to the driver and to the action required from the driver since the provided message only depended on the stability score alone. The calculated overall score played no role in the message provided to the driver.

However, according the above mentioned features of claim 1 the threshold used for the condition of giving a message to the driver regarding the vehicle stability score is that used for the calculation of the overall characteristic score. Accordingly, the overall score is linked to the message given to the driver and to the action required from him. Furthermore, the overall characteristic score is given to the driver via the output device together with a message instructing the driver to enhance the vehicle stability.

Such a specific guidance prioritizing the vehicle stability until a specific stability is reached over its turning performance for properly operating the vehicle is neither taught nor rendered obvious by D1 or D2. These documents merely present the vehicle stability score, the turning performance score and/or the overall characteristic score without any guidance to the driver.

Accordingly, the subject-matter of claim 1 is not rendered obvious by any of the methods disclosed in D1 and D2.

Therefore, the Board decided that the subject-matter of claims is technical and inventive.

More information

You can read the full decision here: T 2206/21 of October 28, 2022, of the Technical Board of Appeal 3.2.01.

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Routing an electronic message and ensuring its integrity : technical

This decision concerns a system and method for secure delivery of business mail such as contracts. The first instance Examining division refused the application as an obvious implementation of a non-technical administrative postal scheme on a notorious networked computer system, claiming components were abstract entities having roles in this administrative scheme and, therefore, lacked technical character. The Board disagreed and noted that in order to route an electronic message from one location to another involves considerations which go beyond what the business person providing the non-technical requirements to the technically skilled person is aware of. A mere similarity to a business or administrative solution is not a sufficient reason for denying a technical contribution of a claim feature. Here are the practical takeaways from the decision T 1158/17 (Routing electronic message/ESCHER GROUP) of December 12, 2022, of the Technical Board of Appeal 3.5.01.

Key takeaways

A similarity to a business or administrative solution is not a sufficient reason for denying a technical contribution of a claim feature applied in a technical context and involving technical considerations. Put another way, technical considerations in the technical context cannot be negated merely on the basis of a non-technical analogy.

The provision of the computers and/or programs in order to route an electronic message from one location to another involves considerations which go beyond what the business person providing the non-technical requirements to the technically skilled person is aware of.

Even if the claim components were defined in functional terms at a high level of abstraction, this alone is not sufficient to negate the technical considerations involved in providing those components. 

Just because the claimed component modeled the roles of humans interacting within the framework of the administrative postal scheme, it does not mean the claimed components were not technical. 

The lack of detailed disclosure concerning the hardware used does not imply that the subject-matter of the application is an administrative postal scheme. This lack of technical detail does not remove the technical contribution of routing electronic messages and ensuring their integrity in a novel manner. 

The invention

The invention concerns a system for secure delivery of business mailings, for example, contracts or invoices.

The system comprises multiple access portals (104) enabling authenticated users to send and receive electronic business mailings. Each access portal is associated with a message server (108), which produces a uniquely identifiable message from an electronic business mailing sent at the portal, and with a secure system node (102). A delivery subsystem (110) routes a message created by the message server, associated with the sender portal, to the recipient access portal over the system nodes. Furthermore, a secure system node associated with the recipient portal checks the integrity of a received message and the integrity of its delivery.

If the received message passes both checks, the destination system node sends an acknowledgement to a secure system node associated with the sender portal. Having received the acknowledgement, the originating system node also checks the integrity of the message delivery, and if the check fails, it instructs the destination node to discard the message. Then, the originating system node sends the original message again. If the received message passes the checks at both nodes, it is delivered to the recipient’s access portal.

  • System Claim 1 of the only request

Is it patentable?

In the first instance, the Examination Division refused the application as the claims related to a non-technical administrative postal scheme comprising the abstract administrative steps and the activity roles represented by abstract functionality entities and users.  The decision contested that due to the high level of abstraction at which they were claimed and disclosed in the application, the claimed components modelled the roles of groups of persons interacting within the framework of the administrative postal scheme.

Moreover, the division alleged that the application did not set out what particular hardware devices were used, and therefore, it was clear that the application’s subject-matter was the administrative postal scheme and not its technical implementation.

Applying the COMVIK approach, the Division held that the administrative postal scheme was given to the technically skilled person as the requirement specification to be implemented on the notorious networked computer system or on the technical infrastructure of one of the known computer systems. The claimed implementation was limited to routine programming and, therefore, obvious to the skilled person.

The applicant appealed against the decision.

The Board disagreed with the Division and judges that many of the claimed features provide a technical contribution and are subject to the assessment of inventive step:

3.2.4 Like claim 1 of the refused auxiliary request, claim 1 of the present main request defines an electronic business portal system that comprises access portals enabling users to send and receive electronic mailings. These features determine the context in which this claim is to be interpreted, namely that a message, created by the message server from an input electronic mailing, is an electronic message. It is also clear that the electronic message is automatically routed to the receiving access portal where the recipient can retrieve the electronic mailing.

Accordingly, the claim clearly defines that messaging servers, system nodes, access portals and the delivery subsystem are either appropriately programmed computers and/or programs running on computers. This was essentially acknowledged by the contested decision, at point 18.

The Board then agreed with the applicant that it went beyond the business person, and merely because the claims were defined at a high-level abstraction or that the invention modelled the role of human interaction does not negate the technical consideration:

3.2.5 In line with the appellant’s argument presented in the first instance proceedings (see section VIII above), the Board judges that the provision of the above computers and/or programs in order to route an electronic message from one location to another involves considerations which go beyond what the business person providing the non-technical requirements to the technically skilled person is aware of (see T 1082/13, Reasons, point 4.8).

While the contested decision was correct in stating that the claim components were defined in functional terms at a high level of abstraction, this alone is not sufficient to negate the technical considerations involved in providing those components.

3.2.6 It follows that the claimed components could not be envisaged by the business person and are part of the technical implementation which falls within the sphere of the technically skilled person.

3.2.7 The Board is not convinced by the contested decision’s finding that the claimed components were not technical because they modeled the roles of humans interacting within the framework of the administrative postal scheme.

The Board considers that a similarity to a business or administrative solution is not a sufficient reason for denying a technical contribution of a claim feature applied in a technical context and involving technical considerations. Put another way, technical considerations in the technical context cannot be negated merely on the basis of a non-technical analogy.

Against the reasoning that the detailed disclosure lacked any hardware and thus implied an administrative scheme, the Board disagreed with such reasoning:

3.2.10 Neither is the Board convinced by the finding that the lack of detailed disclosure concerning the hardware used implies that the subject-matter of the application is an administrative postal scheme. This lack of technical detail does not remove, as essentially argued by the appellant, the technical contribution of routing electronic messages and ensuring their integrity in a novel manner. The questions as to which hardware should be used and what particular programming techniques should be employed were not the focus of the invention and the application legitimately relies in this respect on the skilled person’s common general knowledge.

The Board then indicated features are technical and do not define administrative matter as the claim defines the integrity check of the message.

3.2.12 In summary, the Board judges that the access portals, message servers, delivery subsystem, system nodes and the message creation and routing functionality carried out by these components are technical features. The same is true for adapting the originating and destination system nodes to perform the integrity checks of the received messages and to discard and resend a message which fails these checks.

3.2.13 The Board judges that these features are not part of a requirement specification provided to the skilled person and in order to assess whether they involve an inventive step (Article 56 EPC), an analysis of the written prior art is necessary.

Therefore, the Board decided that the subject-matter of claims is technical. However, as the features were not fully examined or searched, the Board decided to remit the case back to the Examining Division.

More information

You can read the full decision here: T 1158/17 (Routing electronic message/ESCHER GROUP)of December 12, 2022, of the Technical Board of Appeal 3.5.01

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Planning a surgery using statistical shape model of the body part and incorporating surgery planning data: technical

This decision concerns a computer-implemented method of planning a surgical procedure. The Opponent argued that distinguishing features of the statistical shape model of the body part and also incorporating planning data of the surgery did not lead to a technical effect and thus the claim was not inventive. The Board disagreed and indicated that features provide the technical effect that allows anatomical variations in both shape and surgical planning to be accounted for. Even if it was accepted that the subject-matter of the claim did not lead to an improvement over the prior art method, the problem to be solved by the distinguishing features would be to provide an alternative model to the model used in the prior art. Since the solution was not common knowledge, the subject-matter was considered inventive. Here are the practical takeaways from the decision T 0803/17 of June 21, 2022, of the Technical Board of Appeal 3.2.02.

Key takeaways

Use of a statistical shape model of the body part and also incorporating planning data of the surgery provides the technical effect that it allows anatomical variations in both shape and surgical planning to be accounted for.

Even if it was accepted that the subject-matter of the claim did not lead to an improvement over the prior art method, the problem to be solved by the distinguishing features would be to provide an alternative model to the model used in the prior art.

The invention

The invention relates to a computer-implemented method of planning at least a part of a surgical procedure to be carried out on a body part of a patient.

The method uses a statistical shape model of the body part. This model may be derived, for example, from a database of images.  The model is instantiated for the specific patient using data derived from the real body part. This may be achieved for example by spatially matching the model to X-ray or ultrasound images of the patient.

The model also comprises data representing at least a part of the planned surgical procedure to be carried out. For example, when the surgery involves the replacement of the acetabular cup, these may be two points – defined by their three-dimensional coordinates – which are used to describe the orientation of the acetabular cup and its radius.

Instantiating the model also adapts the part of the planned surgical procedure to reflect the patient’s real body part. Continuing with the example of the replacement of the acetabular cup, instantiating the model would result in the points describing the orientation of the cup and its radius also being adapted to the specific patient’s anatomy.

Thereby the surgeon is provided with information which can be used, for example, to determine the best type and/or size of the implant(s) to be used.

  • Claim 1 of the Main Request

Is it patentable?

In the first instance, the Opposition Division rejected the opposition and maintained the patent as granted as the claims were considered inventive. The Opponent appealed against the decision.

The Board noted that the cited document E1 relates to a method for computer-aided navigation and/or treatment planning. It teaches providing a generic model of a body structure and adapting the model to a specific patient.  However, the Board then decided that although the generic model of E1 includes “a statistical model of the body structure”, this is not a statistical shape model of claim 1. Furthermore, the Board also decided that although the cited document E1 may include the planning data, it does not disclose the statistical model incorporates the planning data. Therefore, the distinguishing features were identified as follows:

6.10 In summary, E1 discloses neither a statistical shape model nor that the statistical model of paragraph [0013] incorporates planning data. It follows that the subject-matter of claim 1 is novel over E1 (Article 54 EPC).

The Opponent argued that the distinguishing features over the prior art E1 (US 2003/0185346) did not lead to a technical effect and thus the claim was not inventive. In particular, it was argued that the patent specification did not include evidence showing any improvement from including the planning data in the statistical shape model. The inclusion did not lead to any technical effect, or was even detrimental, implying more work to create the model and more data in the model. Hence no inventive step could be acknowledged.

The Board disagreed with the Opponent and noted that the feature provides a technical effect:

8.1 It is disputed whether the subject-matter of claim 1 involves an inventive step over E1 and common general knowledge.

8.2 Use of a statistical shape model (first distinguishing feature) also incorporating planning data (second distinguishing feature) allows anatomical variations in both shape and surgical planning to be accounted for (see paragraph [0035] of the patent specification).

8.3 The appellant argued that there was no evidence that this would lead to an improved surgical plan in the method of claim 1.

8.4 Even if the appellant’s submission that the subject-matter of claim 1 did not lead to an improvement over the method taught by E1 were to be accepted, the problem to be solved by the two distinguishing features would be to provide an alternative model to the model used in E1.

8.5 E1 does not mention a statistical shape model, let alone suggest its use as an alternative model. Moreover, even if a person skilled in the art using common general knowledge were to consider using a statistical shape model as the statistical model of E1 and adapt the model creation and adaptation/instantiation accordingly, E1 does not suggest incorporating the planning data into this model. This incorporation would additionally require variation information for the planning data, information which is not mentioned in E1.

8.6 Hence the person skilled in the art starting from the method of E1 and wanting to provide an alternative model would not arrive at a method as defined by claim 1 using common general knowledge. It follows that the subject-matter of claim 1 is inventive (Article 56 EPC).

Therefore, the Board decided that the subject-matter of claims involves an inventive step, and the application was allowed.

More information

You can read the full decision here: T 0803/17 of June 21, 2022, of the Technical Board of Appeal 3.2.02.

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Closed-circuit e-commerce entity with reduced load on server : technical

This decision concerns an invention related to connecting and operating a closed circuit e-commerce entity. The first instance Examination Division refused the application alleging the difference between a closed circuit system and other e-commerce system is merely restricting access to a group of people, which is not technical. The Board agreed with the applicant that the system has additional components at an interface that reduces the server’s load and thus can support many kiosks without overwhelming the server, which is technical. Since none of the cited documents hinted the problem or the solution, the subject-matter was considered inventive. Here are the practical takeaways from the decision T 1108/20 (Closed-circuit e-commerce entity for services and products/ Elbex Video ) of October 11, 2022, of the Technical Board of Appeal 3.5.05.

Key takeaways

How to support a large number of kiosks without overwhelming the server is a technical problem 

The invention

In a closed circuit e-commerce service, the user in a geographically closed area such as an apartment complex can access a terminal with a predefined interface where products from different providers are available and purchased within a closed system. This is different from an open e-commerce system where the user has to access different websites of each provider.

The present application relates to connecting and operating a closed-circuit e-commerce entity with a shopping terminal connected to a building server via internal communication lines.

  • Claim 1 of the Main Request

Is it patentable?

In the first instance, the Examining Division refused the application because the claimed subject-matter did not involve an inventive step within the meaning of Article 56 EPC. In particular, the Division considered the only difference was that the e-commerce service was provided on a closed system, and since it merely restricted access to certain people, it was not technical.

The prior art D2 (US 2007/265935 A1), in simple terms, relates to a conventional network running an open e-commerce system where the user has to access different websites of each provider. The applicant disagreed with the assessment of the distinguishing features, and the Board then identified the distinguishing features over the closest prior art to identify the technical problem:

2.5 Hence the board holds that the differences between the subject-matter of claim 1 and that of document D2 reside in that:

(i) the e-commerce entity is a “closed circuit e-commerce entity

(ii) the interface possesses a “CPU

(iii) the interface possesses a memory for storing files comprising the “template organized touch portion”

(iv) the e-commerce entity allows for ordering not only products, but also “itemized services

(v) the “communicating said completed order data” is “supervised by said central server“.

The Board then assessed if the distinguishing features solved a technical problem and if they were obvious to a skilled person:

3.1 In the decision under appeal, the examining division held that distinguishing feature (i) was a non-technical feature which did not solve a technical problem, only the non-technical problem of restricting access to a certain group of people. Since document D2 disclosed login accounts in paragraph [0096], the skilled person would have arrived at this distinguishing feature without employing any inventive skill.

3.2 The appellant submitted that the examining division’s interpretation of the term closed circuit was not correct. Furthermore, it was very clear that in accordance with the invention it was necessary to use specific hardware and/or software to be able to use the templated protocols of the invention.

3.3 In view of the appellant’s arguments, the board considers that the “CPU” mentioned in distinguishing feature (ii) can only be interpreted as relating to an additional CPU, i.e. in addition to the regular CPU that each server – including the server disclosed in document D2 – possesses. The same applies analogously to the “memory” mentioned in distinguishing feature (iii). In line with the description (lower half of page 55 and upper half of page 56), the board holds that distinguishing features (ii) and (iii) relate to the technical effect of supporting a large number of kiosks without overwhelming the server. The objective technical problem is how to support a large number of kiosks without overwhelming the server. This problem is solved by distinguishing features (ii) and (iii), since adding a CPU and a memory for processing kiosk requests at the interface reduces the load on the server CPU. However, neither this problem nor its solution are disclosed or hinted at in the prior art at hand.

Therefore, the Board decided that the subject-matter of claims involves an inventive step, and the application was allowed.

More information

You can read the full decision here: T 1108/20 (Closed-circuit e-commerce entity for services and products/ Elbex Video ) of October 11, 2022, of the Technical Board of Appeal 3.5.05.

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Automatic charging upon location based departure: non-technical

This decision concerns an invention related to automated payment upon sensing departure from a location. Applying the COMVIK approach, the Board noted that since automatic charging is part of the non-technical business aim to be implemented by the skilled person, and has no significance for the purpose of assessing inventive step and any analysis of the benefits or drawbacks of automatic charging is irrelevant. The Board noted that the business person is always looking to reduce resource requirements, and will envisaging a single payment arrangement which would automatically charge the customer at the end of their visit to the outlet. Since the implementing automatic charging would be within the capabilities of a skilled programmer, it is obvious. Here are the practical takeaways from the decision T 0351/19 of June 23, 2022, of the Technical Board of Appeal 3.4.03.

Key takeaways

According to the Comvik approach the non-technical features of a claim may be incorporated into a goal to be achieved in a non-technical field. Subsequently, the approach invokes what might be described as the legal fiction that this goal, including the claimed non-technical features, would be presented to the skilled person, who would be charged with the task of technically implementing a solution which would achieve the stated goal. The question whether the skilled person would “arrive” at the non-technical features does not therefore arise, as these features have been made known to the skilled person, as part of the goal to be achieved. The relevant question for the assessment of inventive step is whether it would be obvious for the skilled person to implement a technical solution corresponding to the claimed subject-matter 

Automatic charging is part of the non-technical business aim to be implemented by the skilled person, and since non-technical features have “no significance for the purpose of assessing inventive step” under the Comvik approach, any analysis of the benefits or drawbacks of automatic charging is irrelevant. According to the legal fiction, the requirement for automatic charging would simply be part of the specification given to the skilled person for technical implementation.

In the present case, automatic charging of the final amount to the customer when they leave the outlet represents the non-technical business aim and the relevant question is whether it would be obvious for the technically skilled person to implement this business aim according to the manner claimed. Asking whether it would be obvious to use the departure of a customer from a retail outlet to generate automatic charging of the customer amounts to asking whether the business aim is obvious. However, the business aim has, according to the above fiction, already been presented to the skilled person as part of the goal to be achieved, and hence this question does not arise in the Comvik approach and is irrelevant to the assessment of inventive step

The business person is always looking to reduce resource requirements, including staff and equipment, and envisaging a single payment arrangement which would automatically charge the customer at the end of their visit to the outlet is, at this level of abstraction, a non-technical idea which would be the province of the business person (who would delegate its implementation to the technically skilled person).

The invention

At retail outlets, customers often wait in lines to pay for items and services. This is true even at restaurants where there may be a line at a point of sale terminal or simply for wait staff to return with a check and then to return with proper change or a bank card used to pay.

The invention aims to be implemented at retail outlets (e.g., restaurants, salons, stores, etc.) to automatically charge a customer account for ordered items upon an automated detection of a customer retail outlet departure.

This is achieved by having the customer account at the retail store linked to a mobile device, determining if the device has departed from the retail outlet, and automatically charging the amount payable to the account linked with the customer.

Fig.1 of EP 3 001 374 A1
Fig.1 of EP 3 001 374 A1
  • Claim 1 of the Main Request

Is it patentable?

In the first instance, the Examining Division refused the application on the grounds that the claimed subject-matter did not involve an inventive step within the meaning of Article 56 EPC. The applicant argued that the

The Board first identified the non-technical features of the claimed invention to apply the COMVIK approach:

3.1 In a retail outlet, the location at which a customer is expected to pay for goods or services (for example, at a table, at a bar or counter, or at the exit) is a decision relating to the administration of the outlet, to be taken by a business person in the light of business or commercial considerations. The same is true of how often payment is to be made (for each separate purchase or only once with a final bill), and the types of payment which are accepted.

3.2 In the present case, payment being made upon departure from a retail outlet, charging being automatic, i.e. without requiring customer intervention, and charging a specific amount to a customer payment account are all business considerations. The following features of claim 1 are therefore seen as non-technical features:

– “has departed a retail outlet”;

– “automatically charging the amount payable to a payment account associated with the customer account”; and

– “the automatic charging including … payment account data and the amount to be charged”.

3.3 Since the claim comprises both technical and non-technical features, the Board makes use of the well-established “Comvik” approach set out in T 641/00 (see Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, I.D.9.1.3 b)). The appellant also stated at oral proceedings that it was arguing in line with Comvik.

According to this approach, “where a feature cannot be considered as contributing to the solution of any technical problem by providing a technical effect it has no significance for the purpose of assessing inventive step” (T 641/00, Reasons, point 6, first paragraph). However, “where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met” (T 641/00, Reasons, point 7, second paragraph).

The Board then identified the distinguishing features over the closest prior art to identify the technical problem:

3.4 The Board sees paragraphs [0066] and [0067] of D1 as a suitable starting point for the inventive step analysis, and the appellant has not disputed that the following features are disclosed in these paragraphs: “A method (200) comprising:receiving, via a network (118) from a mobile device (116) associated with a customer account, first data indicating the mobile device (116) has departed a retail outlet (step 208)”.

3.5 The appellant argues that the remaining features of claim 1 are not disclosed in D1, hence the features distinguishing the claimed subject-matter from D1, are as follows: “and upon receiving the first data;generating, from stored retail session data, a final bill including an amount payable (step 210); andautomatically charging the amount payable to a payment account associated with the customer account (step 212), the automatic charging including transmitting payment account data and the amount to be charged to a transaction processing system”. The appellant argues that “and upon receiving the first data” applies to all of the subsequent steps (“generating”, “automatically charging” and “transmitting”), and while some elements of the above features might be disclosed per se in D1, they are not disclosed as being carried out “upon receiving the first data” or at the departure of the customer from the retail outlet, as in claim 1. The Board sees no reason to depart from this analysis.

3.6 In the present case, in the light of the non-technical features identified above under point 3.2, the essential business aim of the invention is ensuring that the customer is automatically charged the final amount when they leave the outlet, and according to the Comvik approach, this business aim may appear in the formulation of the objective technical problem. The Board therefore regards the objective technical problem as being to implement the automatic charging of the final amount to the customer when they leave the outlet. It is to be understood that this represents a concise formulation of the problem to be solved, and that the problem actually encompasses the technical implementation of all of the features listed above as non-technical under point 3.2, including, for example, “automatically charging the amount payable to a payment account associated with the customer account”.

The Board finds it plausible that those distinguishing features of claim 1 which have a technical character represent a solution to this problem, at least at a very high level.

3.7 In the letter dated 28 April 2022, page 3, first paragraph, the appellant proposed that the problem might be seen as “how to implement automatic payment as the customer leaves the retail outlet to avoid the customer being required to wait in a queue to pay”, which the Board sees as essentially the same as its own formulation of the problem, as stated above under point 3.6. At oral proceedings, the appellant proposed a slightly different version of the problem, namely how to implement the automatic transaction payment to avoid the user having to wait for the manual transaction to be effected. This formulation is unsatisfactory, as it fails to take into account one of the non-technical aims of the invention, namely that the automatic payment is to be carried out upon the customer departing the retail outlet.

Once the technical problem (which included the non-technical aim of the invention) was formulated, the Board noted that the technical implementation was obvious to the skilled person:

3.8 As noted above under point 3.4, the appellant has not disputed that D1, in paragraph [0066], discloses a method for determining whether the customer has departed the outlet corresponding to that set out in claim 1 of the main request. A solution to the present objective problem would require inter alia the implementation of a method for determining whether the customer had departed the outlet, and it would be obvious for the skilled person to adopt the method disclosed in D1 in seeking a such a solution.

3.9 A solution of the objective problem would also require the skilled person to implement automatic payment upon the determination that the customer had left the outlet. Payment using a mobile device was well-known at the priority date of the present application (see e.g. D1, paragraph [0004]). Moreover, it would be obvious to the skilled person starting from paragraph [0066] of D1 to look to the remainder of that document, which discloses numerous examples of payment methods using mobile or wireless devices. Hence, no inventive step can be seen in effecting payment using the customer’s mobile device.

3.10 According to D1, the wireless device may be set up to place an order, request a service etc. (paragraph [0023]), hence, in the terminology of claim 1 of the present application, “retail session data” would be stored. Any electronic payment method necessarily involves a determination of the amount to be paid, and therefore generating a final bill on the basis of what has been purchased (“retail session data”) including an amount payable would be obvious. Charging the amount payable for a purchase to a customer’s payment account is a business feature which is commonplace in electronic commerce (see e.g. D1, paragraph [0045]), the implementation of which would be obvious to a skilled programmer. Similarly, transmitting payment account data and the amount to be charged to a transaction processing system is commonplace in electronic commerce (see e.g. D1, paragraph [0045]), and implementing such a step would present no difficulty to the skilled programmer.

In short, implementing the business aims of the present invention in the manner claimed would be obvious to the person skilled in the art.

3.11 The appellant is correct that in paragraph [0066] of D1 the purpose of determining whether a customer has left a restaurant is to alert the staff to a possible unpaid bill. The appellant goes on to argue that the skilled person would not find it obvious to use this method for the different purpose of triggering an automatic payment. This argument does not persuade the Board.

3.12 According to the Comvik approach the non-technical features of a claim may be incorporated into a goal to be achieved in a non-technical field. Subsequently, the approach invokes what might be described as the legal fiction that this goal, including the claimed non-technical features, would be presented to the skilled person, who would be charged with the task of technically implementing a solution which would achieve the stated goal. The question whether the skilled person would “arrive” at the non-technical features does not therefore arise, as these features have been made known to the skilled person, as part of the goal to be achieved. The relevant question for the assessment of inventive step is whether it would be obvious for the skilled person to implement a technical solution corresponding to the claimed subject-matter.

3.13 In the present case, automatic charging of the final amount to the customer when they leave the outlet represents the non-technical business aim (see above, point 3.6), and the relevant question is whether it would be obvious for the technically skilled person to implement this business aim according to the manner claimed. Asking whether it would be obvious to use the departure of a customer from a retail outlet to generate automatic charging of the customer amounts to asking whether the business aim is obvious. However, the business aim has, according to the above fiction, already been presented to the skilled person as part of the goal to be achieved, and hence this question does not arise in the Comvik approach and is irrelevant to the assessment of inventive step.

3.14 The appellant argued that payment according to paragraph [0045] of D1 involves several data transmission steps, whereas according to the claimed invention a single transmission of optimised data would reduce network usage, which was a technical effect.

3.15 Paragraph [0045] of D1 does indeed disclose a manual payment method involving several steps, which include the customer transmitting a request for the bill from a wireless device to a POS, the POS transmitting the bill to the customer, the customer reviewing the bill and, if satisfied, transmitting a payment confirmation and payment information to the POS, the customer possibly transmitting a request for assistance, and the transmission to the customer’s wireless device of a confirmation that the transaction has been completed.

These steps, and the resulting network usage, are the result of the payment method being manual, with the customer (and possibly the staff) being involved at every step. In a method where the amount is charged automatically, i.e. without any customer or staff involvement, all of the steps involving the customer and/or the staff would be eliminated, and a single transmission would be sufficient to initiate payment. In other words, any reduction in network usage which might be achieved by the method of claim 1, as compared to the method of paragraph [0045] of D1, would arise due to the claimed automatic charging.

3.16 Again it is pointed out that automatic charging is part of the non-technical business aim to be implemented by the skilled person, and since non-technical features have “no significance for the purpose of assessing inventive step” under the Comvik approach (see above, point 3.3), any analysis of the benefits or drawbacks of automatic charging is irrelevant. According to the legal fiction referred to above point [3.12], the requirement for automatic charging would simply be part of the specification given to the skilled person for technical implementation.

3.17 The appellant argues that the skilled person would be unable to implement automatic charging based on D1. The Board accepts that the payment schemes disclosed in D1 (e.g. paragraph [0045]) are manual, and that automatic charging is not disclosed. However, the technical implementation defined in claim 1 is at a very high level, involving, for example, receiving data and transmitting data, and it would be obvious to the skilled person that, to implement automatic payment, any steps disclosed in D1 involving transmission of data to or from the customer (or the staff) should be omitted, and that a single transmission containing only the information necessary to effect the transaction (payment account details, amount to be payed) would suffice.

3.18 If the appellant is arguing that the skilled person would be unable to implement automatic charging at a lower level (e.g. program modules, coding etc.) the Board’s view is that this would be within the capabilities of a skilled programmer. It is also noted that the present application does not contain any technical details of how the claimed steps are carried out other than at a high level, implying that the actual hardware and software measures required to achieve these steps would be readily understood by the skilled person. If this were not the case, then the absence of a detailed technical explanation in the application would mean that the invention was insufficiently disclosed (Article 83 EPC).

3.19 In the statement of grounds of appeal, the appellant argues that the method solves a technical problem in that infrastructure requirements can be reduced; for example, the need for point-of-sale (POS) terminals can be reduced or eliminated. The Board has been unable to identify any mention of this problem in the application, and it appears to be based on speculation. One could equally speculate that it is debatable whether any such savings would arise in practice, since it appears unlikely that a customer could be obliged to allow the location of their mobile device to be monitored (see, for example, D1, paragraph [0067]) or to pay a bill without having had the opportunity to check it, and presumably traditional infrastructure would have to be retained for those customers who refused to pay in this way.

3.20 In any event, the business person is always looking to reduce resource requirements, including staff and equipment, and envisaging a single payment arrangement which would automatically charge the customer at the end of their visit to the outlet is, at this level of abstraction, a non-technical idea which would be the province of the business person (who would delegate its implementation to the technically skilled person). For the reasons given above, the Board considers that, starting from D1, it would be obvious for the skilled person to arrive at the technical implementation of this business idea in the manner according to claim 1.

3.21 In the light of the above, the Board judges that the subject-matter of claim 1 of the main request does not involve an inventive step within the meaning of Articles 52(1) and 56 EPC.

Therefore, the Board decided that the subject-matter of claims does not involve an inventive step, and the application was refused.

More information

You can read the full decision here: T 0351/19 of June 23, 2022, of the Technical Board of Appeal 3.4.03.

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Mathematically determining a compensation for flexible screen based on the distortion experienced at an assumed viewing angle : technical

This decision concerns an invention that relates to foldable display devices and compensating for distortion. The Board agreed with the applicant that mathematically determining compensation based on distortion experienced by a view at an assumed viewing angle is technical, since it solves the problem of using the entirety of the flexible screen for a display and improves the readability in the deformation zone.  Here are the practical takeaways from the decision T 1678/19 of July 26, 2022, of the Technical Board of Appeal 3.4.03.

Key takeaways

Using the entirety of the flexible screen for display and to improve the readability in the deformation zone is a technical problem.

Mathematically determining compensation based on distortion experienced by a view at an assumed viewing angle is technical.

The invention

In a foldable display, the displayed content in a distorted region of the screen (when the screen is in part folded state) has to be adapted to compensate for the impairments or distortions of the content displayed in the folded region.

The invention aims to improve the compensation of the distortion. This is solved by determining the kinds and degrees of distortion that may be experienced by a viewer – i.e. assuming that the display device is viewed from a particular / typical viewing angle – and mathematically determining the compensation.

Fig.6 of EP 2 500 898 A1
Fig.6 of EP 2 500 898 A1
  • Apparatus claim 1 of the Sole Request (labelling (A), (B), ... introduced by the Board)

Is it patentable?

In the first instance, the Examining Division alleged that the subject-matter of the claims (Auxiliary Request in the first instance) lacked inventive step starting from document D2 (UP 2006 243621 A).

The Board summarized the cited document and identified the three distinguishing features, and the technical effect of these features:

3.2 Disclosure of D2

3.2.1 D2 discloses a foldable screen. The screen is an electronic paper within a plastic frame which contains several parts (Fig. 12, reference signs 904, 905). The frame together with the electronic paper screen can be folded like a paper sheet as is shown in Fig. 12. Sensors, such as Hall sensors 918, 920 and magnets 917, 919 detect which parts of the screen are folded out. A control circuit receives the sensor signals and adapts the displayed content, which can be text or an image.

3.2.2 D2 discloses in Fig. 12 that displayed content is adapted in the fold region in the area between sub-screen 912 and 913. The sub-region with the reference sign 908 in Fig. 12 is kept free of text, because in this constellation the electronic paper is too much deformed such that it is not suitable for displaying text. The same is shown in Fig. 17 for regions 907 and 908 (see paragraph [0039]).

The Board then identified the distinguishing features and the technical effect and problem solved and feature:

3.3 Difference

3.3.1 D2 therefore discloses Features (A) to (F). D2 discloses (paragraphs [0033]-[0039]) that the format change compensates for impairment of the visual information in the deformation area by displaying the visual information in compensated format in the formation area by means of

(a) adapted text spacing / positioning,

(b) adapted text font size or

(c) scaling an image.

D2 does not disclose that the compensation is mathematically determined based on distortion experienced by a viewer at an assumed viewing angle.

3.4 Effect

The effect of this difference is that the entirety of the flexible screen is used even after deformation and that the readability in the deformation zone is improved.

3.5 Problem

The objective technical problem can therefore be formulated as to use the entirety of the flexible screen for display and to improve the readability in the deformation zone.

The Board then decided that the subject-matter was not obvious:

3.6 Non-Obviousness

3.6.1 The Examining Division referred to document D4, arguing that compensation based on the assumed position of the observer is disclosed in paragraphs [0047] to [0050] of D4. D4 taught in this passage to adapt the projected content to the curved surface of the screen.

3.6.2 The Appellant argued that the skilled person would not have turned to document D4 from a consideration of the objective technical problem. D4 clearly related to a fixed surface with no flexibility, and contained no teaching in relation to identification of a fold region, let alone any compensation for impairment of visual information in a deformation area caused by folding. The skilled person would therefore not have turned to D4 based on the objective technical problem.

As the geometry of the display was already known in D4, the key point was purely understanding the field of view. This was equated to the observer but in a way that was different from the claim feature according which the compensation was mathematically determined based on distortion experienced by a view at an assumed viewing angle. In D4 the field of view was presented as a rigid mathematical element irrespective of any assumed viewing angle.

3.6.3 The Board agrees with the Appellant that even if the skilled person had turned to document D4 and by combining the teachings of D2 and D4, it would not have arrived at the combination of Features (A) to (G). D2 teaches only the adaptation to the viewer by scaling the image/text or by introducing blank spaces. D2 discloses inclination sensors to detect which part of the electronic book is opened, but not in order to determine a viewing angle. Nothing in D2 and D4 teaches for a foldable screen to first determine a viewing angle of the reader and then to adapt the distortion of the image / text according to the viewing angle.

Therefore, the Board agreed that the subject-matter of claims involves an inventive step, and the application was granted.

More information

You can read the full decision here: T 1678/19 of July 26, 2022, of the Technical Board of Appeal 3.4.03

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Adjusting a camera position based on detecting a face of a user at the other end: technical

This decision concerns an invention that relates to a video conference system that ensures maintaining eye contact with the users. The Board agreed with the applicant that a face detection system that locates a face in the display image and adjusts the camera such that they align with the eyes of the face ensures maintaining eye contact of the participants, thus technical.  Here are the practical takeaways from the decision T 2306/17 of July 27, 2022, of the Technical Board of Appeal 3.5.04.

Key takeaways

Ensuring eye contact of participants by adjusting a camera position based on detecting a face of a user at the other end is technical.

The invention

One obstacle to the widespread acceptance of video conferencing is the inability of video conferencing systems to promote socially acceptable eye contact. In most video conferencing systems, the camera is placed at the top of the monitor, so when a local user looks at the monitor, the local user is not looking into the camera.

The invention provides a system where the camera is positioned behind the screen (see, Fig.1). The screen alternates between a transparent state when the camera images the user and a light-scattering state where it projects a display image on the screen.

In order to ensure eye contact with the participant, the invention provides a face detection and tracking system to identify the face of the other participant on the display screen and align the camera behind the screen with the eyes of the participant (see, Figs.6-7).

Fig.1, 5 to 7 of WO 2009/139995 A2
  • Claim 5 of the Main Request

Is it patentable?

In the first instance, the Examining Division alleged that the subject-matter of the claims lacked inventive step over cited document D1 (US 2005/0024489 A1). The Board considered document D5 (Shinichi Shiwa: “A large-screen visual telecommunications device using a liquid-crystal screen to provide eye contact”, Journal of the Society for Information Display, vol. 1, no. 1, January 1993, pages 37 to 4) would be a better starting point instead and identified the three distinguishing features, and the technical effect of these features:

4.4 The subject-matter of claim 5 differs from the disclosure of document D5 in that the former specifies:

(a) that the screen includes a polymer stabilised cholesteric textured liquid crystal optical shutter

(b) a face detection system to locate a face in the display image and align eyes of the face with the camera, wherein the camera’s position and orientation is aligned with the eyes of a face displayed on the screen, such that the camera has the same view as the eyes of the face being displayed, wherein the optical axis of the camera is perpendicular to a viewing surface of the screen and wherein the optical axis of the camera intersects the screen in a point positioned between the eyes of the face, where the camera is moved to align eyes of the face with the camera

and

(c) that the sync system is configured to adjust the ratio of time the screen is in the transparent state relative to the time the screen is in the light-scattering state dynamically and responsive to changes in an ambient brightness.

4.5 The board finds that these distinguishing features have the following technical effects.

A technical effect of distinguishing feature (a) is an increase in the brightness of the screen (in relation to a standard liquid crystal display as mentioned in document D5, Table 1).

The technical effect of distinguishing feature (b) is an adjustment of a position of the camera capturing an image of a local user of a videoconference.

The technical effect of distinguishing feature (c) is a maximisation of the display brightness while arriving at a sufficient signal-to-noise ratio of the captured images.

4.6 The board finds that the objective technical problems addressed by the distinguishing features are as follows:

(a) how to increase the brightness of the screen

(b) how to adjust a position of the camera capturing an image of a local user of a videoconference

(c) how to maximise the display brightness while arriving at a sufficient signal-to-noise ratio of the captured images

The Board then noted that the features contributed to separate technical problems and thus can be considered independently for the assessment of inventive step. However, it is adequate that one of the features is novel and inventive to render the subject-matter of the claims inventive. Therefore, the Board merely discussed inventive step of one of the features (i.e., feature b – the face detection system) :

4.7 According to the board, these are partial objective technical problems which would each have been separately addressed by the person skilled in the art (see Case Law of the Boards of Appeal of the European Patent Office, 9th edition 2019, I.D.9.2.2). This is because the first problem relates to properties of a screen, the second relates to positioning a camera and the third relates to digital signal processing.

4.8 The board finds that the person skilled in the art faced with the second partial objective technical problem would not have arrived at distinguishing feature (b) for the following reasons.

Document D3 discloses face detection but with the aim of identifying eyes in an image and shifting the position of the eyes in the image to create the impression of eye contact (see D3, column 3, line 14, to column 4, line 4). Document D3 does not teach adjusting a position of a camera capturing an image of a local user of a videoconference.

Document D7 discloses face detection to modify the appearance of an entire head to create the impression of eye contact (see D7, column 6, lines 7 to 33, and Figures 3A, 3B, 4A and 4B). Furthermore, D7 discloses extracting a part of a larger captured image to keep a videoconference user in the centre of a displayed image (see D7, column 6, line 34, to column 7, line 39, and Figure 5). Hence, document D7 teaches modifying an already-captured image rather than changing the manner in which the image is captured.

The board disagrees with the examining division’s view that document D7 rendered the feature “a face detection system to locate a face in the display image and align eyes of the face with the camera” obvious (see point III. above).

Document D7 discloses identifying a face in an image captured by a camera. In other words, this is an image of a local user (see D7, column 6, lines 7 to 11, and column 6, line 68, to column 7, line 39). However, feature (b) under point 4.4 above relates to face detection to locate a face in the displayed image. This image displays the face of a user at the other end of the videoconferencing system.

None of the other prior-art documents on file discloses feature (b) under point 4.4 above, nor does this feature belong to the common general knowledge of the person skilled in the art. The board finds that adjusting a camera position based on detecting a face of a user at the other end of a videoconferencing system provides a non-obvious alternative to the image manipulation known from the prior art.

4.9 Therefore, the subject-matter of claim 5 is not obvious in view of document D5 combined with any prior-art document on file or common general knowledge.

Therefore, the Board agreed that the subject-matter of claims involves an inventive step, and the application was granted.

More information

You can read the full decision here: T 2306/17 of July 27, 2022, of the Technical Board of Appeal 3.5.04

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Reliably detecting traffic violating vehicles: technical

This decision concerns an appeal by an opponent against the maintenance of the patent relating to detecting vehicles and their number plates which are in violation of traffic regulations. The Board agreed with the Patentee that the technical effect provides completely reliable and correct detection of violations (in particular with regard to false alarms) and thus solves a technical problem of how to ensure that the generation concerns the vehicle with the detected licence plate. Here are the practical takeaways from the decision T 2218/19 (A SYSTEM FOR DETECTING VEHICLES / Kria) of March 30, 2022, of the Technical Board of Appeal 3.5.05.

Key takeaways

A system that is completely reliable in terms of correct detection of violations (in particular with regard to false alarms) solves the technical problem of how to ensure that the generation concerns the vehicle with the detected licence plate.

The invention

The invention relates to detecting vehicles and their number plates which are in violation of traffic regulations. There is a need for reliably detecting traffic violations and producing clear documentation with the license plate number.

The invention uses two video cameras having different characteristics. A first camera and the corresponding software detects a number plate in a certain position in the video image. As a consequence of this detection, a possible vehicle is detected in the corresponding position in the video image from a second camera.

 

WO2007107875A2
Fig. 5 and 6 of WO 2007/107875 A2
  • Claim 1 of Auxiliary Request 2 (as maintained by the Opposition Division)

Is it patentable?

The Opposition Division agreed with the Patentee and maintained the claims in amended form. However, the Opponent appealed against the decision of the Opposition Division alleging that the subject-matter of the claim lacks inventive step starting from document D6 (WO 93/19441). The Board agreed with the two distinguishing features as follows:

4.1 It is common ground that document D6 forms a suitable starting point for the inventive-step analysis and that D6 does not disclose the following two features of claim 1:

CF6.2.1|”said respective chain of processing (200-206) sensitive to said respective video signal is configured to perform on said respective video signal processing of the Structure From Motion or SFM type” |

CF6.2.2|”said processing module chain (100-106) detects a license plate in a certain position on said image, and in consequence thereof the SFM module activates generation of a possible vehicle in the corresponding position on the image of the further video camera (14)”|

The Board then agreed with the Opponent that these two features do not provide a combined technical effect and since the distinguishing features solved partial problems, it was admissible to consider them individually for the assessment of the inventive step. Although the first distinguishing feature was considered obvious for a skilled person, the second distinguishing feature (CF 6.2.2) was instrumental in deciding in favour of the patentee.

4.2.9 Feature CF6.2.2 includes two aspects:

(a) in consequence of a licence plate detection, the SFM module activates generation of a possible vehicle

(b) the licence plate is detected at a certain position in an image, and the generation concerns a vehicle in the corresponding position in the image of the further camera

4.2.10 During the discussion at the oral proceedings, the appellant disagreed with the preliminary opinion of the board set out in its communication in accordance with Article 15(1) RPBA 2020, according to which the feature of claim 1 labelled CF6.2.2 in this communication included two aspects labelled (a) and (b).

In the board’s view, the two aspects (a) and (b) fully correspond to feature CF6.2.2 as claimed.

The appellant argued that the aspects (a) and (b) were “switched”. This argument is not convincing. The labels do not imply any sequence. Rather, both aspects concern detection and generation.

4.2.11 Aspect (b) ensures that the generation concerns the vehicle with the detected licence plate. The objective technical problem solved by feature CF6.2.2 may then be worded as “how to ensure that the generation concerns the vehicle with the detected licence plate“. This problem is related to the problem suggested by the respondent (see point 4.2.7 above) and to the object of the invention mentioned on page 4, lines 27 to 30 of the description, i.e. that the detection system is “completely reliable in terms of correct detection of violations (in particular with regard to false alarms)“.

Thus, the problem formulation submitted by the appellant (point 4.2.6(b) above) is not accepted.

The Board then disagreed with the Opponent that the second distinguishing feature was obvious:

4.3.2 Regarding feature CF6.2.2, the board agrees with the appellant that the skilled person would make use of the technology generally available in 2006, such as better cameras (than the ones available at the date of publication of D6, i.e. 1992), faster computers and more powerful OCR programs. Doing so would not, however, result in feature CF6.2.2.

4.3.3 The appellant argued that when the skilled person implemented the SFM function for D6’s camera 6 (feature CF6.2.1), they would notice that camera 6 would become too slow to be able to trigger camera 8. Thus, the skilled person would swap the trigger sequence, i.e. it would let camera 8 trigger camera 6.

This argument is not convincing. First, the skilled person would not use the SFM function in D6’s system if this function created such a timing problem. Second, even if the person skilled in the art used SFM despite this problem, there is no indication in the prior-art documents at hand that they would swap the trigger sequence. Third, even if the trigger sequence were swapped, the skilled person would not find any information or suggestions in the prior art regarding the consideration of the positions in the images in feature CF6.2.2.

4.3.7 The argument that changing the triggering sequence was an easy task for the skilled person and that only two possibilities were present is not convincing. A mere change of the triggering sequence does not lead to feature CF6.2.2.

4.3.8 The appellant stated that feature CF6.2.2 related to a non-technical forensic problem. The board disagrees. The problem set out in point 4.2.11 above is clearly technical.

4.4 In view of the above observations, the subject-matter of claim 1 of the auxiliary request 2 involves an inventive step within the meaning of Article 56 EPC.

Therefore, the Board agreed that the subject-matter of claim 1 of the auxiliary request 2 involves an inventive step, and the patent as maintained by the opposition division was inventive.

More information

You can read the full decision here: T 2218/19 (A SYSTEM FOR DETECTING VEHICLES / Kria) of March 30, 2022, of the Technical Board of Appeal 3.5.05

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Providing an aggregated soft card: technical

The application relates to an aggregated soft card on a mobile device wireless device for conducting payment and non-payment transactions. The Examination Division alleged that the distinguishing features related to business aspects solving no technical problem and that their implementation was mere automation of constraints imposed by business aspects. However, the Board decided that although there may be a business idea to link a loyalty card with a payment credit card, the business idea stops there. The process of requesting and providing an “aggregated” soft card is clearly technical.

Since the first instance failed to search the features for being non-technical, the Board remitted with the instruction to properly apply the COMVIK approach and perform an additional search. Here are the practical takeaways from the decision T 0658/18 (Aggregated soft card/MASTERCARD) of June 13, 2022, of the Technical Board of Appeal 3.5.01

Key takeaways

It may be seen as a business idea to link credit and loyalty cards in sort of an aggregated soft card to make sure that loyalty points are registered after a purchase was made with a particular credit card. However, the business idea stops here. The process of requesting and providing an “aggregated” soft card is clearly technical.

A trusted service manager server accessing a mapping database, the generation of an “aggregated” soft card and the provision of a link including an appli­cation identifier list, are not a business method but these features have a technical character.

In the absence of prior art proving the contrary, they cannot be assumed to be known as such. The term “notorious” should always be interpreted narrowly. 

The invention

Plastic payment cards (debit, credit cards), as well as non-payment cards (loyalty cards, tickets, club membership cards etc.), can be replaced with soft cards on an near-field communication (NFC) enabled mobile device . However, different soft cards may be used separately in sequence during a single wireless transaction (e.g., a loyalty card followed by a credit card). Although the issuing of a dual-purpose soft card is desirable, communication and compatibility problems can arise when utilizing a soft card version.

The invention addresses the technical problem of how to provide and utilize an aggregated soft card on an NFC-enabled mobile device with which it interfaces with a passive wireless transceiver. The solution is an aggregated soft card which is a combination of two or more electronic cards logically linked as a single aggregated soft card and depicted/displayed on a mobile device as a single visual representation. Logically linking the two or more soft cards into an aggregated one allows using them in a single payment transaction (without multiple taps on a card reader).

This is achieved by the mobile device transmitting a request for a multi-component soft card to a service provider trusted service manager SP-TSM or TSM which then requests the component soft card data from the plurality of soft card issuing system servers, and which creates the aggregated soft card by creating a mapping table on behalf of a primary card issuer that establishes an association between the primary component card and the secondary component card.

Fig. 1 of WO 2013/067507 A1
  • Claim 1

Is it patentable?

The Examining Division refused the application and considered the subject-matter of the claims lacked inventive step over documents D1 (US 2010/0041368). The distinguishing features and the technical problem were defined as follows:

2.1 Claim 1 of the main request was refused for a lack of inventive step over D1 (US2010/0041368), from which it was distinguished according to the examining division by the following features, see point 14 of the decision under appeal :

(i) the soft card is an aggregated soft card,

(ii) a plurality of soft card issuing servers,

(iii) to access a mapping database to identify a primary component soft card and at least one secondary component soft card that constitutes the aggregated soft card using an aggregated soft card identifier contained in the request from the mobile device and to identify addresses of the soft card issuing system servers hosting the component soft card data associated with each of the primary component soft card and at least one secondary component soft card,

(iv) to request the component soft card data associated with each of the primary component soft card and the at least one secondary component soft card from the plurality of soft card issuing system servers,

(v) wherein the link includes an application identifier list that contains application identifiers that identify the primary component soft card and the at least one secondary component soft card and are loaded into a proximity payment system environment (PPSE) application of the mobile device in accordance with a predefined preference order in which the primary component soft card and the at least one secondary component soft card are attempted to be used in a [wireless] transaction with the aggregated soft card,

(vi) wherein each of the application identifiers for the primary component soft card and the at least one secondary soft card includes a field that includes an indicator that respectively designates each of the primary component soft card and the at least one secondary soft card as a component of the aggregated soft card.

2.2 The examining division considered that features (i, iii to vi) relate to business aspects solving no technical problem and that their implementation was a mere automation of constraints imposed by business aspects, whereas feature (ii) was a standard alternative in network processing to either centralize or decentralize a predetermined functionality, see point 14 of the decision; D1 was disclosing a single server.

The applicant disagreed with the distinguishing features and the reasoning of the Examining Division:

2.3 The appellant in summary argues that D1 deals with the provisioning of soft cards which are single component cards used in payment transactions whereas the invention proposes an aggregated or multi-component soft card, which is a combination of two or more component electronic or virtual cards that are logically linked as a single card, on a mobile device. The aggregated soft card is provided by a a trusted service manager (TSM) server upon request from the mobile device. This is an additional difference (ia) compared to D1.

This TSM server does not contain a limited number of different component soft cards, but it is configured, based on the received requests, to identify different addresses of the soft card issuing system servers hosting the component soft card data and thereafter combine component soft cards to obtain a large variety of aggregated soft cards.

2.4 The features which distinguish claim 1 from D1 are therefore features (i), (ia) and (ii) to (vi) which all together have the technical effect that with a single request an aggregated soft card can be provided that comprises a plurality of soft cards. This leads to the technical problem of “how to improve the provisioning and use of a soft card on a mobile device”, such as the one known from D1.

2.5 The appellant then argues that based on D1, the skilled person might use a single issuing server for hosting a variety of single-component, single-issuer soft cards, wherein the single issuing server would be configured for storing, maintaining and updating, if needed, of the data relating the stored single-component, single-issuer soft cards. However, the skilled person would not be motivated to use a multitude of issuing system servers in combination with a TSM server for the claimed purpose of an aggregated, multi-component soft card by establishing a link among the soft card data received from the plurality of issuing system servers.

While the Board noted that there were some business idea considerations (linking cards to make sure loyalty points are registered after a purchase), they agreed with the applicant that the distinguishing features relating to the particular process of providing an aggregated soft card cannot be considered non-technical:

2.6 The Board agrees with the distinguishing features as set out by the appellant.

D1 discloses the provision of soft cards to a mobile device in replacement of physical cards, see [0012], which can be payment cards, loyalty cards, member cards, identification cards and other payment and non-payment cards. [0027] discloses a wallet client application on the NFC-enabled mobile device 114 which manages multiple soft cards stored in a secure element on the mobile device. Prepaid soft cards (or gift cards) are provided by an OTA provisioning server 112, see [0029] and [0030], to a recipient of a mobile device upon request by a purchaser. Requester and recipient are different persons and the location for requesting a gift card is disclosed to be done from a merchant website or at a merchant point of sale, see [0016] [0023]. The merchant server receives the purchase data and requests the OTA provisioning server to deliver the prepaid soft card to the mobile device, see [0025] and [0026], if the mobile device is NFC-enabled. When payment is made at a cashier, a user selects the payment soft card from the wallet, see [0051], and brings the NFC enabled mobile device in close proximity to the wireless device reader.

2.7 However, D1 is silent about how the other soft cards are provided to and installed on the mobile device.

It may be assumed – reading it implicitly into D1 – that it is the OTA server which provides them. The OTA server would then correspond to the claimed TSM server. It may furthermore be assumed that the “merchant server” in D1 stands for a plurality of merchant servers.

When taking a credit card of D1 as a primary component soft card and a loyalty card of D1 as a secondary component soft card, it may also be seen as a business idea, for example, to link both cards in sort of an aggregated soft card, to make sure that loyalty points are registered after a purchase was made with a particular credit card. Customers might forget to use their loyalty card. Linking these two cards in some way that they are loaded in the payment application in D1 would be a logical technical consequence.

However, the business idea stops here.

2.8 The particular claimed process of requesting and providing an “aggregated” soft card is not disclosed in D1 nor is it rendered obvious, because the features (i), (iii) to (vi), relating to the provision of an “aggregated” soft card were erroneously taken as non-technical whereas they are clearly technical.

2.9 Furthermore, the OTA server of D1 would need to be adapted in the claimed manner, that is, it would need to maintain a mapping database with “aggregated” soft cards, but D1 teaches a different solution: the linking of the different cards in D1 may also be done on the mobile device, simply by allowing a user to combine different cards.

The Board reitereated for a correct application of the COMVIK approach in mixed type invention and warned against the use of alleging that features are “notorious”, in the absence of prior art:

Incorrect application of the COMVIK approach

2.10 The Board observes that the examining division included a trusted service manager (TSM) server accessing a mapping database, the generation of an “aggregated” soft card, the provision of a link including an appli­cation identifier list, in the business method whereas these features have technical character.

2.11 In the Board’s view this was an incorrect application of the COMVIK approach, which only permits “an aim to be achieved in a non-technical field” to appear in the formulation of the problem (T 641/00). They can hardly be regarded as notorious (nor did the examining division allege they were, see point 14, page 4, last paragraph). In the absence of prior art proving the contrary, they cannot be assumed to be known as such. Since the decision under appeal does not cover these aspects of the invention, it must be set aside.

However, although none of the cited documents seems to disclose the distinguishing features, the Board remitted the application to the first instance with an instruction to perform an additional search as the features were not searched during the examination for being non-technical, and a final assessment of the inventive step was impossible without prior art:

Additional search

2.12 Regarding the procedure before the examining division, the Board is of the opinion that the examining division should have performed an additional search since the provision of a trusted service manager (TSM) server accessing a mapping database, the generation of an “aggregated” soft card, the provision of a link including an application identifier list and the other features of claim 1 which relate to the generation of an “aggregated” soft card are neither non-technical nor notorious.

2.13 Following the principles set out in decision T 1242/04, reasons, point 8, the Board considers that it cannot decide without having these features searched which the examining division originally erroneously interpreted to be non-technical or notorious. The term “notorious” should always be interpreted narrowly.

2.14 The examining division briefly noted in paragraph 16 of its decision that the merging or consolidating of several virtual accounts was known in the prior art and referred to the abstracts of D5 and D6. However, there was no detailed discussion about how and why and in which combination this could and would support a lack of inventive step. During the examination procedure, the examining division intro­duced D10 (“Anwendungen und Technik von NFC”), but for a different aspect of the invention, namely for a mobile phone storing several applications having NFC functionality, see point 17 of the decision.

2.15 Although these features were not known from the available prior art, the examining division did not seem to have searched these features at all, which it should have done since these features are of a technical nature. However, a final assessment of the inventive step by the Board is impossible without prior art.

Therefore, the Board remitted the application to the first instance with an instruction to perform an additional search on the features which were considered technical by the Board.

More information

You can read the whole decision here: T 0658/18 (Aggregated soft card/MASTERCARD) of June 13, 2022, of the Technical Board of Appeal 3.5.01

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Distribution of electronic assets with reduced load to the server: technical

The application relates to a method for the distribution of electronic assets to a test application in a manufacturing process. The Board noted that the solution of providing a daemon that takes over the management of assets reduces the load of the server and thus solves the technical problem of how to minimise the overhead of the server. Since none of the cited documents would lead the skilled person to the solution without hindsight, the subject-matter was inventive. Here are the practical takeaways from the decision T 0447/19 of May 11, 2022, of the Technical Board of Appeal 3.4.03:

Key takeaways

Reducing the load of the server is a technical effect, and it solves a technical problem of how to minimise the overhead of the server

The invention

Products today are on a System-on-Chip (SoC) where manufacturers may use the same SoC with various features enabled/disabled in order to differentiate the final products in the market. In distributed manufacturing, the devices are manufactured at remote locations, and unauthorized enablement of features represents significant revenue loss to companies. Therefore, there is a need for the central producer to monitor and control the device to avoid fraud by local manufacturing (sub)contractors.

Common practice is to provide cryptographic keys with each electronic asset which is distributed from the central producer to a local server at each remote manufacturer. The assets are then tested by an agent (log generated) before inserting into the device.

The invention relates to the management of the asset distribution where the agent is executed as a separate daemon process, independent from the corresponding test application. This allows the agent takes over the communication with the appliance and the request/receipt of electronic assets for the corresponding test application.

Therefore, it is not necessary to establish a connection with the test application or monitor the usage of the assets every time the application needs assets for insertion into the device, as the daemon takes over this task. Moreover, assets left at the daemon’s cache at the termination of the test application are not lost but can be used by a subsequent instance of the test application

Fig. 6B of EP 2 977 941 A1
  • Claim 1 (Sole Request)

Is it patentable?

The Examining Division refused the application and considered the subject-matter of the claims lacked inventive step over documents D1 (WO 2006/133545 A1) combined with document D3 (US 2008/0040550 A1). The distinguishing features and the technical problem were defined as follows:

3.1 It is common ground that document D1 represents the closest prior art.

According to the appellant, claim 1 differs from D1 in that (numbering by the board in line with the impugned decision):

(a) the agent software program is executed as a daemon process separately from the test application and comprises an agent API for communicating with the appliance, and

(b) the daemon maintains a record of assets not used when the instance of the test application terminates for a next instance of the test application.

These distinguishing features were also identified by the examining division, although the division interpreted feature (b) differently, in that it was not the daemon which maintained the assets for the next instance of the test application but simply “assets not used … are maintained …” (see the middle of page 6 of the impugned decision). Since the board agrees with the appellant’s interpretation of feature (b), it also adopted the appellant’s definition of the distinguishing features (see page 3 of the statement of the grounds of the appeal).

3.2 According to the appellant, these two distinguishing features combine to provide the technical effect of the daemon taking over the management of assets, reducing thus the load of the server. Hence, the objective technical problem the skilled person starting from D1 would be faced with was how to minimise the overhead of the server 18 when dealing with equipment 20 (ibid., page 5).

3.2.1 As the appellant further explained during the oral proceedings, the daemon was monitoring the use of the cached assets by the test application. Receiving the log data from the test application regarding the assets inserted into the devices, the daemon was monitoring the use of the cached assets (see also Figure 6B of the published application). In D1 it was the controller of the producer which was receiving all the log data from the key agent and was monitoring which keys (assets) were inserted into the devices, whether there were any unused keys left, etc. (see e.g. Figures 1 and 4 of D1). Hence, by having this monitoring performed by the daemon, the overhead of the server was indeed minimised.

3.3 The board accepts the appellant’s formulation of the objective technical problem.

In the decision under appeal, the examining division considered that the two identified distinguishing features did not combine to produce a synergistic technical effect and assessed them separately. However, since the board does not accept the division’s interpretation of the second distinguishing feature, it does not follow its formulation of the technical problem, either. Since both distinguishing features (a) and (b) relate to the daemon, and the appellant’s formulation of the objective technical problem is considered plausible, the board decided to follow the appellant in this respect.

The Board did not agree with the Examination Division that the skilled person will arrive at the feature from document D3 as it provides a different solution to the problem:

3.4 The examining division referred also to D3. D3 describes a network in which a series of client applications 120 are connected to a directory server 110 (see Figure 1). Normally such client applications access the directory server by establishing a direct connection through a binding operation, which initiates a protocol session between the application and the server, allows authentication of the client to the sever, etc. (see paragraph [0009]).

A problem in such a network architecture is that each application needs to establish a direct connection to the server before it can request any information from it. The server needs to establish separate connections (sessions) to each application for any exchange of information to take place. This increases the load on the server affecting its performance (see paragraph [0010]).

D3 solves this problem by installing a Light Directory Access Protocol (LDAP) caching daemon 210 between the applications and the server (see Figure 2). The daemon obtains data from the server and stores (caches) them in its data cache so that it can directly provide them to the requesting applications without any need for the applications to connect to the server. At the same time, the daemon connects to the directory server and retrieves any information requested by an application but not stored in its cache. In this way, the server has to manage only one individual connection (to the daemon) and can perform its main task of information retrieval more efficiently (see paragraphs [0023] to [0027]).

Furthermore, the Board also agreed with the applicant that even starting from document D1, the skilled person will seek other solutions to the problem, and will not arrive at the solution without hindsight:

3.7 The examining division considered that executing the key agent (21) as a separate background daemon process would have been an obvious choice for the skilled person which would be aware of the advantages of such a modular implementation based only on their common general knowledge. Moreover, such an a implementation would also have been obvious in view of the teaching of D3 (see first two paragraphs on page 7 of the impugned decision).

3.7.1 As explained previously, the board does not agree with the examining division’s separate assessment of the distinguishing features or its formulation of the objective technical problem.

Even if this argument were followed and it were to be accepted that moving the key agent (21) of the manufacturing equipment (see Figure 1 of D1) to a separate daemon process would have been obvious to the skilled person, the board notes that there would still be feature (b) missing from such an implementation to arrive at the claimed invention.

In the claimed invention it is the daemon which, using the log data received from the test application, maintains a record of the unused assets remaining in its cache. The key agent (21) in D1 does not do anything similar. As explained in point 3.6 above, the monitoring of the keys (assets) and their usage in D1 is performed by the controller of the producer and not by the key agent. Implementing the key agent in a separate daemon process would not change this. The log data would still be sent by the manufacturing equipment (20) to the server (18) through the key agent (21). The evaluation and monitoring of the key usage would still be done by the controller of the producer based on the received log report “R”.

Since according to the method of D1 the evaluation and monitoring of key usage based on the log data are effected at the producer and not at the server of the manufacturer, the skilled person wishing to reduce the load to the server would not have any reason to move this functionality from the producer to the key agent. They would rather seek functionalities that could be moved from the server of the manufacturer to the key agent.

Hence, there is no incentive in D1 for the skilled person to introduce any key usage monitoring functionality at the key agent without hindsight. D3, which does not mention any keys/assets or any monitoring of the usage/access of the data cached at the daemon by the applications would not provide any such incentive, either.

3.8 The board’s conclusion is, therefore, that the subject-matter of claim 1 involves an inventive step within the meaning of Article 56 EPC.

Therefore, the Board concluded that the subject-matter of the claims involves an inventive step, and the appeal is allowed with an order to grant a patent

More information

You can read the whole decision here: T 0447/19 of May 11, 2022, of the Technical Board of Appeal 3.4.03

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