In this decision, the European Patent Office refused to grant a patent on a specific way of displaying medical information on a patient monitor. Here are the practical takeaways of the decision T 1442/16 (Cabrera ECG/PHILIPS) of 30.8.2019 of Technical Board of Appeal 3.5.05:
This European patent application relates to medical monitoring, in particular in the context of patient monitors that are used for the observation of the condition of the patient.
As explained in the background section, known patient monitors can display more than hundred different parameters and trigger alarm signals in case one or some of them shows an undesired behavior. Because of the large amount of displayed parameters it is sometimes difficult for a physician to quickly recognize a critical or undesired situation of the patient. The human bounded perception capabilities, worsen by the stress resulted from extreme medical situations like in operation procedures for example, hinder the complete perception of all the information offered by such monitors.
The patent application sets out to solve this problem essentially by displaying the data in a particular manner, namely using a number of multiaxis diagrams in which the position of the axes is related to the position of the sensors arranged on the patient. Fig. 2 shows an example of such multiaxis diagrams:
Here is how the invention is defined in claim 1:
Claim 1 (main request)A method of medical monitoring, the method comprising the steps of
– providing a plurality of sensors (2) and positioning the plurality of sensors (2) on a patient such that the plurality of sensors (2) define a particular arrangement,
– collecting data by means of the plurality of sensors (2);
– simultaneously displaying said data using a number of multiaxis diagrams (6, 7) such that(i) a position and an angle of each of the axes (8, 10) in any of the multiaxis diagrams represents a location of a respective sensor (2) of the plurality of sensors (2) in the particular arrangement, and(ii) on each axis (8, 10) data from its related sensor (2) is displayed.
Is it technical?
The board of appeal primarily dealt with claim 1 of auxiliary request III, since the findings applied equally to the more generic higher ranking requests. This claim version differed from the closest prior art in that each axis of the multiaxis diagrams displaying ECG data displays data from its respective ECG lead data, the position and the angle of each of the axes correspond to the location of the respective ECG lead in the arrangement according to which the respective ECG electrodes of the leads were positioned on the patient, and a 3D heart model is displayed together with the multiaxis diagrams, each of the axes in the multiaxis diagrams extending from the centre of the heart model.
According to the board, these features related to the presentation of information (which is one of the items on the exclusion list) and thus it had to be carefully assessed whether they produce a technical effect:
These features relate to presentations of information (Article 52(2)(d) EPC) and may only contribute to an inventive step if they produce a technical effect, i.e. if they contribute to the technical character of the claim by interacting with its technical features to solve a technical problem (see T 641/00, Headnote 1 and T 1143/06, point 3.4 of the reasons).
Interestingly, the appellants drew an analogy with the famous “Bildstrom” decision of the German Federal Court of Justice (BGH, X ZR 37/13, GRUR 2015, 660 – Bildstrom of 26 February 2015), and argued that in this decision the FCJ reviewed and explicitly confirmed the case law of the Boards of Appeal of the European Patent Office in relation to presentations of information. That decision was, however, noteworthy in that it identified a category of inventions related to presentations of information other than the “what” (“die Vermittlung bestimmter Inhalte” in the citation below) and “how” (“deren Vermittlung in besonderer Aufmachung” in the citation below) categories regularly used by the EPO, namely those which exploit physiological characteristics of human perception so as to enable or improve the perception of presented information by a human.
The appellants were not aware of any such distinction having been made in the case law of the Boards of Appeal and asked the board to also recognise such inventions as contributing to the solution of a technical problem.
The board, however, held that also this alleged third category of technical inventions was already recognized by the EPO, but did not apply in the present case:
However, the distinction between subjective psychological factors and objective physiological factors when assessing the presence of a credible technical effect in inventions involving presentations of information has already been made in several decisions of the Boards of Appeal of the European Patent Office (see e.g. T 862/10, point 4.2 of the reasons; T 1375/11, point 4.6 of the reasons). This is not a further category of inventions involving presentations of information, but rather one criterion for assessing the credibility of an alleged technical effect. In the present case, although the Cabrera system evidently reflects the anatomy of the patient, an arrangement of the axes of the diagrams according to the Cabrera system clearly has nothing to do with the physiological characteristics of the physician’s eye or visual system.
The appellants were not able to demonstrate credibly that the distinguishing features of claim 1 of auxiliary request III produced a technical effect. Accordingly, they relate to presentations of information as such and are non-technical features which have to be disregarded in the assessment of inventive step according to the established case law (see T 641/00, Headnote 1).
Therefore, claim 1 of the main request and auxiliary requests I to III was found not to involve an inventive step.
The appellants also tried an auxiliary request IVa which essentially defined that two polygonal patterns are formed by connecting the values of ECG data on each of two multiaxis diagrams representing the horizontal and vertical planes in which the cardiac electrical field is projected.
The argument was that these polygons created new patterns which did not exist in raw ECG data and which provided additional information to the physician for locating a condition in a patient’s heart. Polygonal patterns were a more intuitive representation than mere points plotted on axes and could convey further information through their shape.
The board, however, did not follow these arguments:
The board is not convinced by these arguments since intuitiveness of presentations of information is not an objective effect, but rather a subjective one which depends on the user’s individual needs and preferences (see T 584/10, point 1.1.4 of the reasons; T 407/11, point 2.1.4 of the reasons).
Thus, also this request was found to lack an inventive step.
Finally, the appellants succeeded in filing another auxiliary request with numerous features related to polygonal patterns and parameters calculated on the basis of these patterns, which had not have been searched yet. The board decided to remit the case to the examining division for further prosecution on the basis of these claims.
You can read the whole decision here: T 1442/16 (Cabrera ECG/PHILIPS) of 30.8.2019
Bastian is a European patent attorney at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.