The European Patent Office did not grant a patent on an internet-based ordering system for customizing pet care products, especially pet food.
This decision is a good reminder of how the COMVIK approach is applied to inventions involving a mix of technical and non-technical features. In essence, starting from commonly known manufacturing and packaging procedures, if the only features distinguishing the invention from the state of the art are non-technical features, the invention does not involve an inventive step.
In passing, the board of appeal in charge also made an interesting comment that the word “system” in a patent claims does not necessarily imply a technical device, but depending on the context can also cover purely abstract systems such a set of organizational procedures.
Here are the practical takeaways from the decision T 1353/15 of 27.8.2020 of Technical Board of Appeal 3.4.03:
This European patent application relates to a method and an apparatus for ordering customized pet care products.
Data characterising the pet, e.g. age, size, breed of the pet, information relating to the health and care of the pet, are obtained from the pet owner (customer), and a profile of the pet is generated. Then, corresponding pet care products are proposed to the customer, who can order one or more of them. The order of the pet care product is then processed and the product is manufactured and packaged.
The aim of the invention is to provide pet care products, and especially pet food, which are better tailored to the specific pet.
An embodiment of the invention relates to an implementation of the claimed method using and Internet-based computer network architecture allowing the customer/pet owner to order the pet products online, as shown in Fig. 1:
Here is how the invention was defined in claim 1:
Claim 1 (main request)A method for administering a consumer direct pet care system for offering customized pet care products according to an individual preference of a customer, said method comprising the steps of:
gathering data characterising the pet from the customer, the data comprising age, size and breed of the pet, pet care information and pet health information,
compiling this data to generate an individual pet profile (80);
accepting a pet care product order from the potential customer based upon information in the individual pet profile (80); and
processing the pet care product order in accordance with the individual pet profile (80), which comprises the steps of manufacturing (94) and packaging (96) the order in accordance with data contained in the individual pet profile (80).
Is it patentable?
The first-instance examining division had refused the application on the ground that the main request did not involve an inventive step. The applicant pursued the same main request on appeal.
The board of appeal, however, shared the examining division’s opinion, in particular that claim 1 does not use any technical means besides (implied) product manufacturing and packaging means. In this context, the board made some interesting remarks on the technical character of the word “system” used in claim 1:
The board shares the opinion of the examining division that the use of the word “system” in the definition of the claimed method (“A method for administering a consumer direct pet care system for offering customized pet care products…”) does not necessarily imply the use of any technical means. A system in this context can also be understood as a set of procedures […].
According to the board, with the exception of the manufacturing and packaging, which involves handling a physical product, the steps of the method relate to purely administrative (business) steps of a commercial transaction, but no technical means or any technical considerations are involved and no technical problem is solved. The board illustrated this point with the following observation on how the claimed method could be implemented:
A customer/pet owner enters a pet care shop. They discuss with an employee, who asks the customer a series of questions in order to get information about the customer’s pet, such as breed, age, size, and information related to the health and care of the pet. The employee, based on the information provided by the customer generates a pet profile. Based on this pet profile, the employee proposes to the customer pet care products that would be suitable to the specific pet. The customer orders one (or more) of the proposed products. The employee goes to the back of the store, manufactures the ordered product (e. g. mixes a specific composition of pet food), packages it and gives it to the customer.
In the board’s opinion, the features relating to the gathering of information from the customer and the generation of the pet profile based on this information neither contribute to solving any technical problem nor provide any technical effect. They were therefore considered to be administrative non-technical features, which cannot establish an inventive step according to the COMVIK approach.
Concerning the manufacturing and packaging steps, the board noted that these steps merely implied the use of unspecified technical means and the handling of an unspecified pet care product. The application, however, did not provide any information about how manufacturing and packaging are carried out. The board thus considered that these features of the claim belong to the state of the art and the common general knowledge of the skilled person.
The board thus concluded that claim 1 lacks an inventive step according to the well-established COMVIK approach:
Hence, starting from such commonly known manufacturing and packaging procedures, the only features distinguishing the claimed method from the state of the art are non-technical features. In the board’s opinion, such features cannot provide a basis for an inventive step within the meaning of Article 56 EPC 1973.
Since also the auxiliary requests were found not to involve an inventive step, the appeal was dismissed.
You can read the whole decision here: T 1353/15 of 27.8.2020
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.