This decision relates to a European patent application directed at an apparatus and a method for collection, analysis and transmission of data related to patient movementsHere are the practical takeaways from the decision T 2084/18 (Suspicious behaviour/AIC) of June 18, 2021 of Technical Board of Appeal 3.5.05:

Key takeaways

The presentation of information might only exceptionally contribute to the technical character of the invention if it credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process.

The invention

The invention concerns a medication administration confirmation apparatus. The medication administration confirmation apparatus is configured to first display instructions to a user on how to properly perform desired medication administration steps. The medication administration confirmation apparatus is then configured to capture a video of the user to determine whether the user has correctly administered the medication. Determining whether the user has correctly administered the medication includes identifying indications of suspicious activity in the video.

Fig. 3 of EP2968074

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

D1 (WO 2011/062934 A1) was considered as the closest prior art. According to the Board in charge, the subject-matter of claim 1 differs from the above disclosure essentially in that a field of view narrower than the field of view captured by the video capture device is displayed on the display while the user is performing the particular sequence of actions. Indeed, D1 does not disclose that the field of view being captured by the video capture device is displayed to the user in full or in part.

However, the Board considered that this distinguishing feature does not produce any technical effect:

Displaying a video with a certain content does indeed relate to presentation of information within the meaning of Article 52(2)(d) EPC. A presentation of information might only exceptionally contribute to the technical character of the invention if it credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process, this being the applicable test (see T 336/14, Headnote; T 1802/13, page 10, second full paragraph; T 1091/17, point 1.7 of the reasons).

The appellant tried to argue that the distinguishing feature produces a technical effect based on decision T 115/85 as follows:

… the appellant put forward a further argument that the cognitive effect of trapping a user assisted (if not the user) the claimed apparatus itself in performing its task. To illustrate its argument, the appellant made analogies between the case in hand, in which trapped malicious users may try to frustrate the claimed apparatus by appearing as if they were taking their medicine, and various hypothetical cases, namely frustrating currency or passport counterfeiters by security features such as invisible ink, and turning off the power light of a recording security camera in order to let observers think that it is not recording. It argued that in all these examples a technical effect was achieved by obscuring the internal state of the apparatus. The case law of the boards of appeal recognised giving visual indications about the internal state of a system as technical. Similarly, refraining from giving such a visual indication or obscuring the internal state of an apparatus in order to frustrate malicious activity should also be a technical effect.

However, these arguments did not convince the Board:

Given the body of subsequent case law which discusses under which conditions or for which internal states of a system or apparatus this statement would be valid (see inter alia T 833/91, point 3.7 of the reasons; T 336/14, point 1.2.4 of the reasons, second paragraph), it is evident that statements with regard to technicality at this level of generality should be made with an abundance of caution. To take the example of “obscuring the internal state of a system”, suggested by the appellant, whereas this may give rise to a technical effect in certain cases, e.g. protecting a cryptographic computation against power analysis attacks as in T 556/14 (see points 13 and 14 of the reasons), in other cases it would not.

As for the present case:

… any alleged technical effect of the distinguishing feature of claim 1 should be judged on its own merits rather than by rules at this level of abstraction. The same holds true for the hypothetical examples given by the appellant. These examples suggest at least that the appellant considers that the cognitive effect leads to a technical effect of increased security, which is generally recognised as a technical effect. In the case in hand, however, the cognitive effect of the distinguishing feature, i.e. that the users may think that they are out of the field of view of camera, does not lead to increased security. It does not assist the apparatus of claim 1 in performing its assigned task, i.e. medication administration confirmation, either. On the contrary, the cognitive effect in the case in hand encourages the users to perform what the application calls “a suspicious or malicious act” and hence impairs the proper performance of the medication administration process.

Therefore, the Board concluded that the distinguishing feature does not produce any technical effect and that the subject-matter of claim 1 does not involve an inventive step (Article 56 EPC). The appeal was thus dismissed.

More information

You can read the whole decision here:T 2084/18 (Suspicious behaviour/AIC) of June 18, 2021 of Technical Board of Appeal 3.5.05.

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