This decision concerns a European patent related to a head-mounted display system that captures and processes eye images. The Opposition Division (OD) maintained the patent in an amended form according to auxiliary request 1. However, the opponent appealed, and the proprietor defended the patent with additional auxiliary requests 2 to 7. Ultimately, the Technical Board of Appeal revoked the patent. Here are the practical takeaways from the decision of T 0371/23 dated January 20, 2025, of Technical Board of Appeal 3.5.05.
Key takeaways
Implementing user consent categories for sharing biometric information in head-mounted display systems is considered an administrative scheme and does not contribute to the technical character of an invention.
The invention
The patent pertains to a head-mounted display system designed to capture eye images of the wearer, determine biometric information from these images, and present a user interface requesting consent to share this information. The system allows users to select consent categories, and based on their input, it controls the transmission of specific biometric data.
Fig. 2 of EP3433707
Here is how the invention was defined by claim 1:
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Claim 1 (auxiliary request 1)
A head mounted display system comprising:
an image capture device (452) configured to capture eye images of an eye;
a display (208) configured to display virtual images to the eye (302, 304, 410) of a wearer (204) of the head mounted display (200, 400, 710); and
a hardware processor (224, 228, 450) programmed to:
obtain the eye images of the wearer captured by the image capture device;
determine biometric information of the wearer based at least in part on the eye images, wherein the biometric information is associated with physiological or behavioral characteristics of the wearer;
display a user interface comprising a popup (824) including a consent request that includes a plurality of consent categories for the biometric information, wherein the plurality of consent categories includes a first consent category and a second consent category, and wherein the popup includes interactive buttons that are configured to receive input from the wearer indicating consent to share at least a portion of the biometric information;
receive a response to the consent request, wherein the response includes a consent indication from the wearer;
in response to a determination that the consent indication indicates that the wearer has not agreed to the first consent category, suppress transmission of biometric information that is associated with the first consent category, and;
in response to a determination that the consent indication indicates that the wearer has agreed to the second consent category, transmit, to an acquirer device, the biometric information that is associated with the second consent category.”
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Claim 1 (auxiliary request 2)
Claim 1 of auxiliary request 2 differs from claim 1 of auxiliary request 1 as follows (with the deletions [deleted: struck through]):
“[…]
determine biometric information of the wearer based at least in part on the eye images, wherein the biometric information is associated with physiological [deleted: or behavioral] characteristics of the wearer; […]”.
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Claim 1 (auxiliary request 3)
Claim 1 of auxiliary request 3 differs from claim 1 of auxiliary request 2 as follows (with the additions underlined and the deletions [deleted: struck through]):
“A head mounted display system comprising:
a[deleted: n] first image capture device (452) configured to capture eye images of an eye;
a second image capture device configured to capture a plurality of outside world images;
a display (208) configured to display virtual images to the eye (302, 304, 410) of a wearer (204) of the head mounted display (200,400, 710); and
a hardware processor (224,228,450) programmed to:
obtain the eye images of the wearer captured by the first image capture device;
[…]
display, on the display (208), a user interface comprising a popup (824) including a consent request for biometric information from a biometric information acquirer computing device, the consent request including [deleted: that includes] a plurality of consent categories for the biometric information, wherein the plurality of consent categories includes a first consent category and a second consent category, and wherein the popup includes interactive buttons that are configured to receive input from the wearer indicating consent to share at least a portion of the biometric information;
[…]
in response to a determination that the consent indication indicates that the wearer has agreed to the second consent category, transmit, to [deleted: an] the acquirer computing device, the biometric information that is associated with the second consent category.”
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Claim 1 (auxiliary request 4)
Claim 1 of auxiliary request 4 differs from claim 1 of auxiliary request 3 as follows (with the additions underlined and the deletions [deleted: struck through]):
“[…]
in response to a determination that the consent indication indicates that the wearer has not agreed to the first consent category, [deleted: suppress transmission of] not transmit biometric information that is associated with the first consent category, and; […]”.
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Claim 1 (auxiliary request 5)
Claim 1 of auxiliary request 5 differs from claim 1 of auxiliary request 3 as follows (with the additions underlined):
“[…]
in response to a determination that the consent indication indicates that the wearer has not agreed to the first consent category, not transmit biometric information that is associated with the first consent category, and if a transmission of biometric information exists due to a prior consent of the wearer, suppress transmission of transmit biometric information that is associated with the first consent category, and; […]”.
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Claim 1 (auxiliary request 6)
Claim 1 of auxiliary request 6 differs from claim 1 of auxiliary request 5 as follows (with the additions underlined and the deletions [deleted: struck through]):
“A system (700) comprising a plurality of [deleted: A] head mounted display systems (710), a plurality of biometric information acquirer computing devices (715) and a biometric information exchange system (705) for exchanging information between wearable display systems (710) and biometric information acquirer computing devices (715) through a network (720), each head mounted display system (710) comprising: […]”.
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Claim 1 (auxiliary request 7)
Claim 1 of auxiliary request 7 differs from claim 1 of auxiliary request 6 as follows (with the additions underlined and the deletions [deleted: struck through]):
“[…]
in response to a determination that the consent indication indicates that the wearer has agreed to the second consent category, transmit, to the acquirer computing device, the biometric information that is associated with the second consent category,
wherein the biometric information corresponds to at least one of eye patterns, eye movements, eye fixations, or eye browsing history.”
Is it patentable?
D1 (US 2014/0139551 A1) was considered as the closest prior art.
The Board disagreed with the OD and found that the subject matter of claim 1 of auxiliary request 1 lacks an inventive step because the distinguishing features merely implement an administrative scheme and do not contribute to the technical character of the invention:
1.4 The board does not agree with the opposition division. As the opponent rightly observed, the human-machine interaction in the case at hand does not control in any manner how the technical transmission of data actually takes place. The user’s consent does not change the way how information is technically transmitted. Instead, it merely gives the user’s approval to the categories of information which can be shared with third parties. However, it is not a “technical task” to give consent to sharing of information. In the absence of a technical task, the opposition division’s application of the test of T 336/14 and T 1802/13 fails from the very beginning. Instead, as the opponent again rightly argues, distinguishing features F1.4.3 to F1.4.8 are merely the implementation of an administrative scheme which cannot contribute to the technical character of the claimed invention.
- Auxiliary requests 2 to 7
The Board found no inventive step in auxiliary requests 2 to 7:
2.2 As to their substantiation, the proprietor briefly stated for each auxiliary request that it “addresses the objection of insufficiency of disclosure”, “addresses the objection of added subject-matter” or “addresses inter alia the objections of inventive step”. However, it did not further substantiate how these requests actually addressed the opponent’s objections.
2.3 In its preliminary opinion issued under Article 15(1) RPBA, the board stated that, irrespective of admittance issues, the board agreed with the opponent that the objection of lack of inventive step against auxiliary request 1 applied mutatis mutandis to auxiliary requests 2 to 7.
2.4 The proprietor did not reply in substance to the board’s preliminary opinion. After reconsideration, the board sees no reason to change its preliminary opinion.
The Board found that claim 1 of all auxiliary requests lacked an inventive step. Hence, the Board dismissed the appeal and the patent is revoked.
More information
You can read the whole decision here: T 0371/23 dated January 20, 2025, of Technical Board of Appeal 3.5.05.
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