The application underlying this decision relates to correlating media consumption of a user with corresponding demographic data of the user. However, the European Patent Office refused to grant a patent since claim 1 merely relates to the obvious technical implementation of a business method. Here are the practical takeaways of the decision T 1049/19 (DETERMINE IMPRESSIONS USING DISTRIBUTED DEMOGRAPHIC INFORMATION/The Nielsen Company) of December 13, 2022 of Technical Board of Appeal 3.4.03:
The application underlying the present decision mainly concerns monitoring of media consumption behavior of a client and linking the behavior to demographic data of the client (e.g., location, age etc.). Section 3 of the present decision gives an illustrative example for understanding the business idea underlying the present application. In short, a questionnaire is used to evaluate the behavior from clients by a corresponding “first server”. In exchange for filling out the questionnaire, the client is promised to receive a free magazine subscription once the client provides his address.
In case the client did already provide said information previously, the media consumption behavior can be logged together with the provided address without further ado.
Should the client still refuse to provide his personal data, the “first server” merely loggs the questionnaire data without demographic linkage.
Fig. 1 of WO 2012/040371 A1
Here is how the invention is defined in claim 1 of the main request:
Claim 1 (Main Request)
(A) A method to monitor media exposure, the method comprising:
(B) accessing, by a client computer, the media,
(C) wherein instructions are provided with the media that, when executed at the client computer, cause the client computer to send a first request to a first server of a first internet domain,
(D) wherein the first request is indicative of access to the media at the client computer and includes identifying information associated with the media;
(E) receiving, at the first server, the first request from the client computer;
(F) determining, at the first server, if the client computer is identifiable;
(G) if the client computer is identifiable, logging, at the first server, an impression of the media;
(H) if the client computer is not identifiable at the first server: sending, from the first server, a response to the client computer, the response to instruct the client computer to send a second request to a second server of a second internet domain,
(I) the second request to be indicative of the access to the media at the client computer; and
(J) in response to the second request provided by the client computer, the second request to cause the second server to:
(K) determine if the client computer is identifiable as a registered user of services offered by the second internet domain;
(L) if the client computer is identifiable at the second server, log a second impression, the second impression being logged in association with demographics information; and
(M) if the client computer is not identifiable at the second server, not log an impression;
(N) receiving, at the first internet domain, the second impression,
(O) wherein the second impression from the second internet domain includes demographic information of a user associated with the client computer; and
(P) determining that the second impression corresponds to the media presented at the client computer.
Is it technical?
For assessing technicality, the Board considered the above-described (non-technical) business scenario. For this purpose (i.e., construction of the business scenario), the Board replaced or deleted all technical features of claim 1 with business related equivalents (see section 3.1.8 of the present decision). As a result, the follwing technical features were identified:
- (a) “a client computer being connected to the Internet”,
- (b) “the first server being connected to the Internet” and
- (c) “the second server being connected to the Internet”.
Closest prior art?
Regarding the identifying of the closest prior art the Board stated the following:
According to the “COMVIK approach” (cf. T 641/00)
non-technical features within the meaning of
Article 52(2)(c) EPC, e.g. features related to business
methods, cannot contribute to inventive step. These
features can thus be included in the formulation of the
technical problem. Therefore, the aim to be achieved in
a non-technical field may legitimately appear in the
formulation of the problem as part of the framework of
the technical problem that is to be solved (see G 1/19,
point 31; “Case Law of the Boards of Appeal of the
European Patent Office”, 10th edition, 2022, sections
I.D.9.2.1 to 9.2.6).
However, the Board further stated that in case that the claimed non-technical features do not interact with claimed technical features such that a further technical effect is achieved one can either:
- Include the corresponding aim to be achieved in the non-technical field (i.e., the business aspect) in the formulation of the problem to be solved, or
- Take the corresponding business scenario as the starting point for the problem and solution approach.
In the present case, the Board decided that the business scenario should serve as the starting point for the problem and solution approach. Notably, it was not considered as necessary by the Board to cite a “prior art” document disclosing this business method. Instead, the business scenario itself (i.e., as outlined in the present application) was considered as closest prior art and thus as spring-board for the problem and solution approach.
According to the Board, the distinguishing features a-c (see above) do not provide a further technical effect. Instead, these features allegedly merely relate to automate the business scenario by implementing it in a digital system.
Therefore, the Board formulated the technical problem as how to implement the scenario into a network computer system.
Regarding said implementation the Board stated:
The solution is straightforward and leads via technical
means (a) to (c) – as disclosed e.g. in D1 or D3 –
directly to features (A) to (P). Consequently, the
subject-matter of claim 1 is obvious over the common
general knowledge of the skilled person in combination
with a standard computer network.
On the contrary, the Appellant argued that:
the “notional business
person” (cf. T 1463/11, reasons 16, T 288/19, reasons
3.4.3 ff, T 698/19, reasons 3.6.4, T 524/19, reasons
2.7.5) was not able to implement this scenario, because
technical skills for establishing the computer
communication and knowledge about programming cookies
would be required. A “real business person” having
technical knowledge about cookies and java scripts instead of a “notional business person” without such
skills was therefore in fact considered.
However, the Board did not follow these arguments. Instead, the Board emphasized that:
business person” (cf. T 1463/11) only constructs the
business scenario and does not need to have any
technical knowledge (features (A’) to (P’)). The
objective technical problem of the “technically skilled
person”, i.e. a computer engineer, is then to implement
the business scenario into a network computer system.
This technical implementation is a straightforward
technical task which does not need any inventive
skills. The expert providing the technical
implementation (features (a) to (c)) does not consider
changing the business scenario and takes the business
boundary conditions of the scenario for granted.
The Board further stated that the claim does not include any further specifications regarding the implementation (e.g., using cookies or specific java scripts). Accordingly, the distinguishing features would merely relate to an obvious technical implementation of the business concept for the skilled person
As a result, the Board dismissed the appeal due to lack of inventive step.
You can read the whole decision here: T 1049/19 (DETERMINE IMPRESSIONS USING DISTRIBUTED DEMOGRAPHIC INFORMATION/The Nielsen Company of December 13, 2022.