The application underlying this decision relates to customization of a piece of footwear based on physiological data. However, the European Patent Office refused to grant a patent since claim 1 mainly addresses the a non-technical mapping of (technical) acceleration data to a gait category. Here are the practical takeaways of the decision T 1234/17 (Customization based on physiological data/Adidas AG) of March 4, 2022 of Technical Board of Appeal 3.5.01:

Key takeaways

The mere mapping of (technical) sensor data to a gait category cannot contribute to the technical character of an invention.

The invention

The application underlying the present decision mainly concerns the customization of a product (e.g., a piece of footwear) based on physiological data (e.g., a given set of characteristics of a person’s gait as measured by an accelerometer) (cf. paras. [0005] and [0023] of the application).

Fig. 6 of EP 2610808 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request)

Is it technical?

Both the Board in charge and the Appellant agreed that the closest prior art document D3 failed to disclose that the customization uses sensor data being applied to a model of human physiology as defined by the last two features of claim 1:

1.1 wherein said at least one sensor includes an accelerometer and the collected sensor data includes a time series of acceleration vectors, wherein the data collected by said at least on sensor is analyzed by a sensor data analysis module, and

1.2 wherein the sensor data analysis module applies a model of human physiology to associate the time series of acceleration vectors with one of the following categories of human gait: supination, protination, over-protination or neutral.

However, the Board considered the claimed customization as well as the use of the human physiology model to be non-technical:

1.3 The skilled person would need to be given instructions on both how the “physiological” attribute” (category of human gait) should be based on the sensor data and how the customization should be based on the human gait. This was said to be an indication of non-technicality.

In response, the Appellant argued that the term “design” pertained to technical properties of the piece of footwear and that “customization” had to be interpreted as customization of a physical item. Furthermore, the Appellant argued that the distinguishing features would improve the accuracy and user-friendliness of the customization process by additionally including dynamic information:

1.4.1 The appellant argued that the term “design” pertained to technical properties of the piece of footwear, like shape, size and material composition and that “customization” had to be interpreted as customization of a physical item rather than graphics customization. The description (paras. [0023], [0027] and [0041]) would clearly set out how sporting footwear could be customized based on one or more properties of a user’s running gait, determined from sensor data representing time series of acceleration vectors by applying a model of human physiology.

1.4.2 The appellant also pointed out that the advantageous technical effect of the combination of the above features was that not only static data about the shape of the foot of a wearer – in the form of a 3D scan of the foot and pressure map of the foot sole – was used in the customization process for the piece of footwear, but that dynamic information – in the form of a time series of acceleration vectors – was utilized to obtain information about the gait category of the wearer. The gait category was used to determine the design of the customized footwear which better fitted the user’s typical movement patterns.

1.4.3 The appellant argued that the objective technical problem should be formulated as how to improve the accuracy and user-friendliness of the customization process of D3.

However, the Board did not follow the Appellant’s arguments. Instead, the Board stated that the invention can be seen as two mappings, where the first one maps sensor acceleration data to a gait category and the second one maps the gait category to a “customized” design:

1.5.1 With respect to the first mapping, the Board stated that the recording of sensor data is no doubt technical. However, the question is whether the mere idea of mapping this acceleration data to a gait category is technical, involves any technical considerations or has any overall technical effect. This would be the case if the algorithm were to somehow enhance the input data using consideration of e.g. the placement of the sensors. However, apart from specifying that the data “includes a time series of acceleration vectors” which is “analyzed” no further details are present in the claim that could constitute technical considerations about the data or the sensors. Thus, the Board considers that the mere idea of mapping acceleration data to gait category does not contribute to inventive step. Only its implementation involving the sensors could contribute.

1.5.2 With respect to the second mapping, the Board stated that due to the lack of detail in the claim and in the description, no technical considerations were involved in the design, apart from the fact that it involves a physical object, namely footwear. Thus, the Board considers that the basic idea of customizing footwear depending on the model of human physiology does not contribute to inventive step.

Since the second mapping was considered non-technical, as a result, the Board defined the problem to be solved as how to adapt the customization process of D3 to take into account categories of human gait derived from acceleration data. However, solving this problem by adding sensors to the arrangement of D3 was considered obvious.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1234/17 (Customization based on physiological data/Adidas AG)) of March 4, 2022

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