This decision is a good example of a software tool with very useful functions for the modern office worker, but which does not necessarily qualify as a patentable invention at the European Patent Office.

Here are the practical takeaways from the decision T 0434/13 (Generating availability data of a called party/MITEL) of 26.1.2017 of Technical Board of Appeal 3.5.03:

Key takeaways

Providing a more reliable estimate of availability in order to overcome the drawback that not all users provide accurate updated information in their calendars is not a technical problem.

The invention

This European patent application concerns context-aware call handling in communication systems.

According to the application, it is commonplace for users of telephone systems to be directed to voice mail when they attempt to reach a potential collaborator. The calling party can leave a message requesting to be called back, but there is no assurance that the calling party will be available when the called party makes the requested return call. The familiar game of “telephone tag” is created in this way.

But moreover, so the application, social science research has indicated that informal interaction is an essential element of workplace life to provide for both innovation and efficiency. To this end, the telecommunications industry has been developing presence and availability technology to provide for the necessary element of causal awareness. These allow users to share their current availability with potential collaborators. However, knowledge of current availability is not useful when the called party is not available and the parties need to communicate with each other.

The application therefore regards it as a key aspect of the invention to integrate availability indicators to decisions on call disposition by
call control. In particular, it proposes a method for improving the estimation as to the likely availability of a user to which a call may be made in the future from a calling party.

Fig. 8 of EP 2 071 816
Fig. 8 of EP 2 071 816

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

The first-instance examining division had refused the application for lack of inventive step based on the argument that claim 1 essentially related to a computer-implementation of a non-technical method.

In its inventive-step assessment on the appeal stage, the board identified the following distinguishing features over the closest prior art:

The subject-matter of claim 1 therefore differs from the disclosure of D1 in that claim 1 includes the following features:

said estimating availability for said at least one future temporal block comprises a hardware or software confidence agent querying a calendar of at least one other user associated with said user to determine meetings in which said user may be involved,

estimating confidence of said queried calendars by querying an estimator that monitors actual meeting information of a user associated with said queried calendar,

comparing said actual meeting information with meeting information recorded in said queried calendar, determining the proportion of accurately recorded meeting information with respect to a total amount of meeting information recorded, and

giving preference to meetings associated with the queried calendar having the highest confidence when applying said availability rules.

Following the COMVIK approach, the board assessed whether these features produce any technical effect and thus contribute to the solution of a technical problem. The avid reader will probably have guessed the board’s answer:

In the board’s view, the main (non-technical) problem to be solved starting out from D1 is to provide a more reliable estimate of availability in order to overcome the drawback that not all users provide accurate updated information in their calendars. This problem is essentially solved by consulting calendar information (data entered by the user as well as “actual” meeting information) with regard to meetings of a user and at least one other user associated with the user, and giving preference to meeting information determined to have a higher likelihood of accuracy based on comparing actual meeting information with recorded calendar information. This concept is essentially non-technical (although this was disputed by the appellant, see below), since neither calendar data, nor “actual” meeting data, nor availability estimate data have any technical character, and the manipulation of the data to determine the estimate concerns essentially a mathematical method, which is also regarded as non-technical (cf. Article 52(2)(a) EPC).

The patent applicant had argued that providing improved availability data indeed resulted in technical effects, because improved availability data reduced the use of communication resources between a calling party and a called party and enhanced the call processing options available. As the improved availability assessment was responsible for these effects, all features of claim 1 contributed to inventive step.

But the board was not persuaded:

The board however considers that the presence of the wording “for a future communication from a calling party” makes no contribution to inventive step. In this respect, consider that a caller in a conventional manner wished to place a call to a called party. When deciding whether to place the call at a certain time, it is obvious that it would be possible to obtain information regarding the called party’s likely availability during a particular period of time, for example by consulting the person’s diary or calendar, as well as other calendars indicating meetings which the person is scheduled to attend. Determining a person’s availability in this way is essentially non-technical. The mere fact that the improved result might potentially be used to influence when to place a future conventional call to that person does not in itself give the method a technical character. It is further noted that the wording “for a future communication” does not even require in claim 1 that a future communication be made. Consequently, this hypothetical step does not meaningfully limit the claim.

Accordingly, the board considered the features in question to be non-technical features, so that they do not contribute to inventive step under the COMVIK approach. The board then went on to assess whether the claimed computer-implementation could involve non-obvious further technical considerations. The patent applicant had argued that the computer-implemented solution using a confidence agent and an estimator for monitoring actual meeting information went beyond merely carrying out non-technical steps on a computer. But the board did not agree:

The board however disagrees. In this respect, the board considers that the skilled person wishing to solve the problem of implementing the availability estimation (cf. point 1.5 above) would, without requiring inventive skill, provide the “normal” hardware and/or software entities necessary for (i) obtaining the required data from calendars (e.g. by querying on-line calendars), (ii) obtaining data concerning actual meeting information (e.g. by querying a store of such information), and (iii) estimating availability by comparing the data in the manner claimed. With regard to the features “confidence agent” and “estimator” in claim 1, the board considers that “confidence agent” is merely an arbitrary term for a software entity which carries out steps (i) to (iii), and the term “estimator”, while obscure, since this component does not appear to estimate anything, but merely “monitors” actual meeting information, is understood as a hardware and/or software entity programmed to be supplied with actual meeting information data, and which can be queried by the confidence agent. The board considers that it makes no difference to the assessment of inventive step whether the confidence agent itself “monitors” the actual meeting information data (see point (ii) above), or whether this task is performed by a separate hardware and/or software module which has to be queried by the confidence agent. The functional and/or physical separation of such programming tasks is a routine measure for the skilled person, as illustrated by D1, in which different entities are involved in collecting presence information (“presence server 114”), collecting calendar information (“calendar server 118a”), and analysing the information (“rules engine 112”).

The board therefore concluded that claim 1 did not involve an inventive step, and dismissed the appeal.

More information

You can read the whole decision here: T 0434/13 (Generating availability data of a called party/MITEL) of 26.1.2017

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