This decision relates to a European patent application that deals with redistribution of tickets for an event. Here are practical takeaways from the decision T 2852/19 of 26.1.2023 of Technical Board of Appeal 3.4.03:

Key takeaways

According to the “COMVIK approach” (see T 641/00), non-technical features within the meaning of Article 52(2)(c) EPC, i.e. features relating to administrative or commercial procedures not having a technical effect, cannot contribute to the inventive step.

The invention

The invention relates to optimised occupancy of an event. The aim is to avoid seats remaining empty if visitors cannot reach the event location in time. The invention proposes to automatically determine whether visitors to an event are in a defined area at a certain distance from the venue. GPS data from visitors’ cell phones is used for this purpose. If ticket buyers are not in said area shortly before the start of the event, an alert is sent to them and their ticket is resold in case of cancellation.

Figure 3 of EP3077976

Here is how the invention was defined in claim 1:

  • Claim 1 (main request)

Is it patentable?

According to the decision, D1 (= US 2010/015993 A1) is considered closest prior art.

The Board decided the following:

4.4 Difference

D1 therefore does not explicitly disclose:

(a) dynamically adapting the distance/area with time;

(b) requesting a visitor to cancel a seat reservation;

(c) offer the seat for resale.

4.5 Effect

4.5.1 The effect

(i) of features (a) and (b) is optimising the seat occupancy;

(ii) of features (b) and (c) is to increase the profit by reselling seats shortly prior to the event in case a visitor has cancelled its venue.

4.5.2 The effect (i) is technical. The effect (ii) is non-technical. According to the “COMVIK approach” (see T 641/00), non-technical features within the meaning of Article 52(2)(c) EPC, i.e. features relating to administrative or commercial procedures not having a technical effect, cannot contribute to the inventive step. These features may therefore be included in the problem definition (see, inter alia, G 1/19 [reasons pt. 31], T 641/00, G 3/08, “Case Law of the Boards of Appeal of the European Patent Office”, 10**(th) edition, 2022, Sections I.D.9.2.1 to I.D. 9.2.6). According to T 641/00, the objective to be achieved in a non-technical field may appear legitimate in the formulation of the problem as part of the framework of the technical problem, i.e. the objective technical problem amounts to a statement of requirements that any implementation must meet.

4.5.3 Furthermore, according to the COMVIK approach, it is not decisive whether a system or process is technical or not. Rather, it is relevant whether the system or process contributes to the solution of a technical problem. The purpose of the system disclosed in D1 is the same as in the present invention, i.e. to achieve effects (i) and (ii) ([0023]). D1’s system as well as the present invention have – with respect to a manual system (cf. section VI(b) ff, above) – the technical effect of

1.) reducing network traffic since visitors do not have

to be called/emailed individually;

2.) optimising the seat occupancy.

4.5.4 This is achieved in both systems through GPS tracking and arrival time estimation, as well as the possibility to cancel seats via mobile device after a reminder sent to the visitor. Consequently, the implementation of the distinguishing features (a) to (c) into D1’s system would not have any additional technical effect and would not solve a technical problem.

4.5.5 The system according to the invention has only the difference that the radius of the area is dynamically adjusted. However, this corresponds to the disclosure of D1, i.e. the continuous monitoring of the position and the continuous calculation of the time of arrival. Therefore, the arguments under a) to e) of the appellant do not apply, since the technical effects discussed there are already achieved in the system of D1. Consequently, decision T 0279/05 is not applicable to the present case.

4.6 Problem

Therefore, the problem may be formulated as “optimising the seat occupancy and implementing features (J) and (K), i. e. prompting the user to indicate whether they plan to attend the event and offer the seat for sale“.

4.7 Obviousness

ad (a)

4.7.1 D1 calculates for a visitor continuously, i.e. at each point of the approach route, the remaining distance and route as well as the remaining time until reaching the venue. In addition, D1 specifies at least two different area thresholds (5-mile radius, 2-mile radius). It is obvious that these thresholds correspond to the time intervals when a visitor will be able to make his reservation in time at two different time thresholds, e.g., at 7:30 PM and 7:45 PM if the reservation is made for 8:00 PM. Therefore, it is obvious in view of the disclosure of D1 that the size of the area is reduced (e.g. from a 5-mile radius at 7:30 PM to a 2-mile radius at 7:45 PM) as an event start time approaches.

ad (b)

4.7.2 Feature (b) relates to an economical model, i.e. reselling a ticket by encouraging a visitor to cancel its reservation if it cannot meet the appointment time. The system of D1 reveals that a visitor is reminded of its reservation (“remind a user of a reservation”). D1 further discloses the option to “cancel a reservation if the user cannot meet the appointment time” by mobile phone. It would be obvious that the reminder contains a link or a request to cancel the reservation if the appointment time cannot be met.

ad (c)

4.7.3 Feature (c) is per se obvious, because it relates to a business method, i.e. reselling a ticket (reservation) in the case a visitor cannot arrive in time. In addition, D1 teaches “maximizing capacity and hence revenue”. D1 further teaches to rearrange a seating schedule and to offer the seat to other users ([0093]). If the restaurant charges a reservation fee for the deck, then this rearrangement corresponds to a resale of the seat reservation (if the system in D1 is not applied to a restaurant reservation but to a theater or concert reservation, the rearrangement would also correspond to a resale of the reservation ticket). It is therefore obvious to resell a reservation (event ticket) when the system in D1 detects that a reservation cannot be taken.

4.8 Features (F), (I), (J) and (K) are therefore obvious in view of the disclosure and teachings of D1.

5. Summary

The subject-matter of claim 1 does not involve an inventive step over document D1 in combination with the common general knowledge of the skilled person and is therefore not inventive within the meaning of Article 56 EPC.

Consequently, the present European patent application has been finally refused.

More information

You can read the whole decision here: T 2852/19 of 26.1.2023 of Technical Board of Appeal 3.4.03.

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