In this decision, the European Patent Office refused to grant a software patent on the concept of sorting review information in priority order to reduce the time and effort for a user to find desired review information. Here are the practical takeaways of the decision T 0886/17 (Displaying review information in priority order/Rakuten) of 6.3.2020 of Technical Board of Appeal 3.5.07:

Key takeaways

Sorting or grouping data in a particular manner on the display is a matter of the presentation of information, which as such is non-technical.

Not every physical change qualifies as a technical effect. A physical change caused by non-technical features is to be regarded as a technical effect for the purpose of assessing inventive step if the non-technical features are based on technical considerations aimed at controlling that physical change.

When assessing the presence of a credible technical effect in inventions involving presentations of information, a distinction has to be made between subjective psychological factors and objective physiological factors.

It is standard practice in user interface design to minimise the number of interactions.

The invention

This European patent application generally relates to providing review information about “transaction targets” such as products or accommodations. The system receives a search condition input by a user (e.g search words), searches transaction targets matching the search condition, and displays review information regarding the transaction targets in a predetermined display order. The purpose of the invention was to reduce time and effort necessary for a user to find desired review information.

Fig. 6A of EP 2 725 502
Fig. 6A of EP 2 725 502

Here is how the invention is defined in claim 1:

  • Claim 1 (main request)

Is it technical?

The examining division had decided that claim 1 then on file constituted a straightforward technical implementation of a non-technical administrative and business-related scheme in a notorious electronic data processing system.

On appeal, the board started its patentability analysis from a notoriously known information retrieval system:

At the date of priority of the present application, web-based information retrieval systems which gave the users the possibility of reviewing or rating articles of interest and viewing such information as part of the search results were notoriously known. The application acknowledges in paragraph [0002] that such systems were known.

Such a notorious information retrieval system, which was the starting point for assessing inventive step in the Board’s preliminary opinion, includes searching means, acquiring means and controlling means similar to those defined in claim 1.

The board identified three differentiating features in the invention according to claim 1:

  • (a) the transaction targets are stored in a first computer database and the review information is stored in a second computer database distinct from the first;
  • (b) the apparatus includes determining means for determining a priority order of the pieces of review information of each transaction target which satisfies the search condition, the priority order being determined “according to a correspondence between the search condition and the pieces of review information”; and
  • (c) a list of pieces of review information comprising at least one piece of review information associated with the identification information of each target is generated and displayed in the determined priority order.

The first difference was found to be just a minor implementation detail not helpful for the patentability of the invention:

Distinguishing feature (a) is a minor obvious implementation detail. It is common practice to distribute data across different databases. In addition, the Board is not convinced that feature (a) interacts with features (b) and (c) in such a way as to produce a synergistic effect. This was not contested by the appellant.

More interesting were the other two differentiating features, which relates to sorting the pieces of review information and displaying them in the sort order. These features were found to have the effect of changing the way the pieces of review information are presented to the user. One of the central questions of this appeal was thus whether this effect was a technical one:

Computer programs and presentations of information as such are excluded from patentability under Article 52(2)(c) and (d) and (3) EPC. Furthermore, sorting or grouping data in a particular manner on the display is a matter of the presentation of information, which as such is non-technical (T 2045/10 of 28 April 2016, Reasons 5.6.2). It therefore has to be assessed whether features (b) and (c) interact with technical features of the invention to solve a technical problem bringing about a technical effect (T 2045/10, Reasons 5.6.2 to 5.6.4; T 1442/16 of 30 August 2019, Reasons 1.4; T 697/17 of 17 October 2019, Reasons 4.2 and 5.2.2).

The appellant had argued that an important distinguishing aspect of the invention was using the same search condition used to search the transaction targets to determine the priority order, and that this produced three technical effects:

  1. The first effect was a reduction of the load on the information retrieval apparatus, which was clearly not a cognitive effect. By performing the search and ordering together, fewer processing steps were necessary.
  2. The second effect, improved ergonomics, was achieved by requiring the user to enter the search condition only once, which resulted in fewer mouse clicks or key press operations. Since this related to physical movement, it was technical. In the prior art, the search results were first displayed and then the user had to select one of the displayed search results and scroll down to the “reviews” section. Typically, the user had then to click “see all reviews” in order to go to a page showing a number of reviews. This page had options to order the reviews. The user had to enter the search term again to sort the review information.
  3. The third effect was that the computer was “controlled to the memory location” of the pieces of review information which, in accordance with decision T 1351/04 of 18 April 2007, was a technical effect.

Here is what the board made of these arguments:

Even though the case law generally recognises a technical contribution by non-technical features if they are causally linked to a technical effect, not every physical change qualifies as a technical effect. A physical change caused by non-technical features is to be regarded as a technical effect for the purpose of assessing inventive step if the non-technical features are based on technical considerations aimed at controlling that physical change (T 697/17, Reasons 5.2.2; T 2230/10 of 3 July 2015, Reasons 3.7). The physical change has to be purposively used in the solution of a technical problem (T 258/97 of 8 February 2002, Reasons 6).

In the present case, distinguishing features (b) and (c) are not purposively directed to reducing the processing load or to directing the computer to a memory location. They are not based on technical considerations of how to achieve these effects, but rather on non-technical considerations regarding the information of interest to the user. In particular, the conclusions of T 1351/04 do not apply here. Unlike in T 1351/04, the present invention does not use an index or similar “management information” providing a path to the desired data, and the Board cannot see any technical considerations regarding directing the computer to a memory location.

The Board agrees with the appellant that teachings from case law should not be dismissed because the specific means used to achieve a technical effect there are not identical to those used in the present case, but notes that the question of which specific means are used to achieve an alleged technical effect, and thus whether they are comparable to those of the case law, is pertinent because features can only make a technical contribution if they are based on technical considerations (see also T 697/17, Reasons 4.2, 5.2.2, 5.2.3).

The Board is therefore not convinced that distinguishing features (b) and (c) can be considered to make a technical contribution by virtue of the first and third alleged technical effects.

With regard to the second alleged technical effect, the appellant cited decision T 1375/11 of 31 March 2016, which affirms that it is well established by the Boards of Appeal that improving ergonomics is technical (Reasons 4.4). In that decision, the invention was considered to solve the problem of avoiding the fatigue caused by the repetitive movements of the user’s eyes and head necessary to follow the displayed game, which were physiological aspects (Reasons 4.2 to 4.7). However, in the present case, there are no repetitive movements of the head and eyes or other physiological factors.

When assessing the presence of a credible technical effect in inventions involving presentations of information, a distinction has to be made between subjective psychological factors and objective physiological factors (T 1375/11, Reasons 4.6; T 1442/16, Reasons 1.8). Furthermore, it is established jurisprudence of the Boards of Appeal that “lowering the cognitive burden of a user” per se cannot as a rule be considered a technical effect (T 1802/13 of 10 November 2016, Reasons 2.1.7; T 1741/08 of 2 August 2012, Reasons 2.1.6).

In the present case, the allegedly achieved reduction in user interaction steps depends on cognitive aspects, and the Board is not convinced that the use of the search condition for determining the priority order is primarily based on technical considerations regarding ergonomics. If that order were not relevant for the user, then sorting the information according to that order would potentially result in more user interaction steps. As mentioned by the appellant, the priority order is chosen so that review information in which a user is very interested is preferentially displayed among pieces of review information of transaction targets. In that way, the user can grasp information more easily or find information with less effort. However, as argued in the decision under appeal, those are effects that remain at the cognitive level and are subjective. Therefore, the priority order and the presentation aspects of features (b) and (c) do not have to be considered in the assessment of inventive step. If a technical problem is solved, these aspects can be included in the formulation of the technical problem (T 641/00, OJ EPO 2003, 352, Reasons 7).

If it is assumed, in line with the appellant’s argument, that the invention contributes to the technical effect of facilitating user interactions, then features (b) and (c) constitute an advantageous solution to the problem of modifying the notorious information retrieval system to display the pieces of review information according to a priority order determined by the “correspondence between the search condition and the pieces of review information”.

However, it is standard practice in user interface design to minimise the number of interactions. Knowing that the priority order is based on the search condition, it is thus obvious for the skilled person to reuse the search condition to generate and immediately display the ordered list instead of requiring further input from the user. Modifying the notorious information retrieval system to determine a specific priority order and generating and displaying the list in that order as defined in features (b) and (c) involves only ordinary programming skills. Hence, regardless of whether features (b) and (c) are technical, they are obvious.

As a result, the board decided that claim 1 lacked an inventive step and dismissed the appeal.

More information

You can read the whole decision here: T 0886/17 (Displaying review information in priority order/Rakuten)

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