This decision relates to a European patent application directed to viewing and recording program content. Here are the practical takeaways from the decision T 2386/17 () of 20.7.2022 of Technical Board of Appeal 3.5.04:
Key takeaways
Any aspects based on the subjective interests, personal preferences and (business/commercial) activities or circumstances of the user are non-technical in nature.
Allowing the user to state their preferences on which segments of a programme should be recorded based on the type of programme is non-technical because it is essentially based on commercial and psychological considerations.
The invention
The invention relates to a method of recording segments of programming content comprising a live transmission, such as a sporting event. Transmitted start triggers indicate the start time of programming content and segment triggers indicate the start time of segments of the programming content. The recording of segments is based on user preferences on a type of live segment to be recorded and a type of preceding live segment to be recorded.
Figure 5 of EP2410736
Here is how the invention was defined in claim 1:
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Claim 1 (main request)
Is it patentable?
WO 03/093965 A1 (cited as D4) was considered as the closest prior art.
According to the Board, the method of claim 1 differs from that of D4 by the following distinguishing features:
(a) a particular segment is recorded “based on a first user preference indicating a type of live segment to be recorded”;
(b) “in response to a determination to record the particular segment, recording, based on a second user preference indicating a type of preceding live segment to be recorded with the type of live segment to be recorded, another segment preceding the particular segment, wherein the recording the another segment comprises transferring the another segment from a buffer to a record memory”.
However, the Board concluded that the distinguishing features do not involve an inventive step. Here are the Board’s main considerations:
Objective technical problem
6.1 It is established case law of the boards that any aspects based on the subjective interests, personal preferences and (business/commercial) activities or circumstances of the user are non-technical in nature (see decisions T 478/06, point 6 of the Reasons and T 972/07, point 6 of the Reasons).
6.2 Distinguishing features (a) and (b) allow a user to set preferences such that a live programme segment of a certain type (e.g. sports) and a preceding segment are automatically recorded.
6.3 In the board’s view, allowing the user to state their preferences on which segments of a programme should be recorded based on the type of programme is non-technical because it is essentially based on commercial and psychological considerations, i.e. on making a product more attractive to the user and in creating an effect in the user’s mind. Technical aspects only come into play with the technical implementation of such a non-technical idea.
6.4 In line with the “COMVIK approach” established by the case law of the boards, if the problem is based on a mix of technical and non-technical considerations, the objective technical problem may have to be formulated by including the non-technical aspects, whether novel or not, as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met (see decision T 641/00 “Two identities/COMVIK“, OJ EPO 2003, 352, point 5 ff of the Reasons; decision T 154/04, OJ EPO 2008, 46, point 16 of the Reasons; opinion G 3/08, OJ EPO 2011, 10, point 10.13.2 of the Reasons; decision G 1/19, OJ EPO 2021, A77, points 30 to 34 of the Reasons and Case Law of the Boards of Appeal of the EPO, 9th edition, July 2019, I.D.9.1.4).
6.5 In the current case, the board thus considers that the objective technical problem should be formulated as how to allow a user to set preferences such that a live programme segment of a certain type (e.g. sports) and a preceding segment are automatically recorded.
Obviousness
7.1 The board considers that starting from D4 and faced with the above objective technical problem, the skilled person would immediately have realised that the user had to be allowed to state their preferences, for instance, via a user interface, as was well known in the art. The skilled person would also have realised that a technical problem had to be overcome in that the preceding live segment might have already started being received when start triggers for an incoming live segment were received (see the example on page 34, lines 3 to 7, according to which two start triggers are received 15 and 5 seconds prior to the start of a segment, i.e. shortly before the segment itself, and likely after the preceding segment has already started). In the board’s view, the solution to this problem would have been straightforward to the skilled person: to use a circular buffer to store received segments for long enough so that they are still stored in the buffer when start triggers for the next segment are received. Such a circular buffer for buffering incoming broadcast programmes was well known in the art (see, for instance, paragraphs [0049] and [0226] of D3).
Hence the skilled person would have arrived at the distinguishing features of claim 1 without any inventive activity.
Hence, the Board decided that the subject-matter of claim 1 of the main request does not involve an inventive step (Article 56 EPC) in view of document D4 and the skilled person’s common general knowledge.
Since none of the auxiliary requests could overcome this issue, the European patent application was finally refused.
More information
You can read the whole decision here: T 2386/17 () of 20.7.2022 of Technical Board of Appeal 3.5.04.