Author Archive

Providing an advance warning of the end of a commercial break: non-technical

This decision concerns a method for providing an advance warning of the end of a commercial break. However, the Board did not grant a patent, because the distinguishing features were either considered a non-technical or an obvious technical implementation. 

Here are the practical takeaways from the decision T 1553/18 (Broadcast content resume reminder/DISH) of February 8, 2023, of the Technical Board of Appeal 3.5.04.

Key takeaways

Terms and their distinctions in a claim, if founded on subjective judgement of a user, are non-technical.

The invention

The invention relates to providing an advance warning of the end of a commercial break so that a viewer has enough time to switch back to the preferred programming and does not miss any of it once the commercial break has ended (cf., application , page 4, lines 1-8).

Fig. 1 of EP 2 779 673 A1

  • Claim 1 of the Main Request

Is it patentable?

Both the Board in charge and the Appellant agreed on D5 representing the closest prior art. Compared to the disclosure of D5, claim 1 of the main request differs in the following aspects:

    1. the monitoring of the status of the commercial break includes detection of timing information within a broadcast data stream of the channel associated with the particular broadcast programming (partial feature 3.);
    2. determining, prior to the ending of the commercial break, an upcoming ending time for the commercial break, based on the timing information (feature 4)
    3. determining, based on the timing information, a time for outputting an interface indicating the upcoming ending of the commercial break and outputting the interface at this time (feature 5 and partial feature 6)

With respect to the alleged technical effect, the Board stated:

A distinction between a “commercial break” and a piece of “particular broadcast programming” is not made by technical features. From the perspective of a user, a piece of “particular broadcast programming” is something potentially interesting (see claim 1, lines 6 to 7). In contrast, users change channels during commercial breaks, i.e. try to avoid spending time watching them (see description, page 1, lines 27 to 28).

What users are interested in is a subjective non-technical aspect. Contrary to the above assumptions, some users may be more interested in new and nicely made commercials transmitted during a respective break than in regular broadcast programming. Hence, to identify a transition point between a commercial break and the resumption of a particular broadcast programme serves a non-technical purpose, namely to maximise the time users spend watching content of interest to them.

The same holds for providing an advance warning of the end of a commercial break so that a user has enough time to switch back to the preferred programming and does not miss any of it once the commercial break has ended. This embodies the wish of a user not to miss any of the “particular broadcast programming” at the expense of watching the last moments of a commercial.

Hence, providing an advance warning of the end of a commercial break can be seen as an aim to be achieved in a non-technical field and may legitimately appear in the formulation of the objective technical problem (see Case Law of the Boards of Appeal of the European Patent Office, 10th edition 2022, I.D.9.2.6).

The Appellant argued:

None of the features in the claim were expressed as non-technical features and  that, as a result, all the features should have been considered to have technical character contributing to inventive step. […] and that the claim did not address an aim in a non-technical field. The claim addressed a problem in the technical field of multi-channel video players, i.e. set-top boxes, and provided a viewer with improved control of the video stream sent to the display.

[In addition] the subject-matter of claim 1 did not relate to a method of doing business, i.e. obtaining revenues for the insertion of commercial breaks. The method defined in claim 1 set out a way to treat commercial breaks as they arrived as part of broadcast programming. In the method of claim 1, commercial breaks were simply another part of broadcast programming.

The Board was not convinced by these arguments and instead stated that:

The board takes the view that in all the distinguishing features quoted under point 2.3 above, the term “commercial break” appears. This term and its distinction from a piece of “particular broadcast programming” is inherently non-technical because it is founded on the subjective judgement of a user that the particular broadcast programming is something not to be missed, while watching commercials during a respective break is to be avoided.

It agrees that the subject-matter of claim 1 is not about obtaining revenues for the insertion of commercial breaks. However, the distinction between a “commercial break” and a piece of “particular broadcast programming” is non-technical. To reflect this distinction in the subsequent formulation of the objective technical problem, the board refers to a “particular broadcast programming” as preferred programming and to a “commercial break” as non-preferred programming.

As a result, the Board followed that the distinguishing features can be part of the formulation of the problem to be solved, namely:

How to implement an advance warning of the end of non-preferred programming so that a viewer has enough time to switch back to the preferred programming and does not miss any of it once the non preferred programming has ended. .

Accordingly, the skilled person in the art would have understood that to implement an advance warning of the end of non-preferred programming, the end time of the non-preferred programming had to be identified before it was over. This could not be implemented by an analysis of audio-visual content of the non-preferred programming. Such an analysis could only identify a change from non-preferred programming to preferred programming after the change had happened.

As documents D4 or D7 allegedly include corresponding hints for solving the problem, the Board concluded that the skilled person in the art would have arrived at all the distinguishing features in a straightforward manner.

Hence, the board finds that the subject-matter of claim 1 does not involve an inventive step within the meaning of Article 56 EPC.

More information

You can read the full decision here: T 1553/18 (Broadcast content resume reminder/DISH) of February 8, 2023,  of the Technical Board of Appeal 3.5.04.

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Enhanced scrollbar: non-technical

This decision concerns an enhanced scroll bar. However, the Board did not grant a patent, because the distinguishing features were either considered a mere display of information or an obvious technical implementation. 

Here are the practical takeaways from the decision T 2760/18 (Enhanced scrollbar/BLACKBERRY) of January 26, 2023, of the Technical Board of Appeal 3.5.01.

Key takeaways

Display of information can only achieve a technical effect if the way information is displayed credibly assists the user in performing a technical task.

A credibly achieved technical effect requires an objective and reliable link between the feature and the effect. Ideally, said effect is derivable from the application.

The invention

The invention relates to an enhanced scrollbar. A graphical user interface (GUI) 102 is provided for navigating through a sorted list of content items 111-120. For example, a list of images sorted by time (cf. para. [0001], [0002] of the application as filed). The sorted list of content items is displayed by a navigation list 160 which allows navigation through the items using a movable navigation element 170. According to the invention, the size (L) of the GUI element 170 varies depending on a distance (D) between a subset of items (e.g., 116-118) which is to be displayed in the GUI 120. As a result, the GUI element 170 does not only provide the functionality of scrolling through the items, but also gives a sense of scale of the time spanned by the displayed content items relative to the total time spent by all items (cf. para. [0013] of the application as filed).

Fig. 1 of EP 2 937 829 A1

  • Claim 1 of the 6th Auxiliary Request

Is it patentable?

Both the Board in charge and the Appellant agreed on D2 representing the closest prior art. D2 concerns a GUI for navigating through a large list of sorted items using a scrollbar. In the GUI of D2, the scrollbar can be placed next to a scrolling window displaying a subset of items from a filtered list. An alphabetically ordered list of words from a dictionary comprising a certain pattern. These correspond to the “plurality of content items”. Ordering the items chronologically suggests that the associated “common property” can be time. The positions of the items in the filtered list are highlighted in the background of the scrollbar to show the locations of entries that match the pattern. The user can navigate through the filtered list by moving the scrollbar’s knob, corresponding to the “navigation element”, along the background, corresponding to the “navigation list”, or by clicking the mouse on the scroll window and dragging it vertically. The items shown in the scrollable area correspond to the position of the knob.

Accordingly, claim 1 of auxiliary request 6 differs from the closest prior art by the following aspects:

  1. The width of the navigation element varies and is defined by the distance between the properties of the first and last item in the displayed subset of item.
  2. The method runs on a portable electronic device with a touch-sensitive display (preamble).

The appellant argued as follows:

The ”associated common properties” of the content items in the invention were absolute properties inherent to the content items, whereas the width of the navigation element varies and is defined by the distance between the properties of the first and last item in the displayed subset of items.

The Board was not convinced by this argument:

The common property is limited to time, which is known from D2. Moreover, time alone does not necessarily imply absolute or unevenly distributed property values. It may, for instance, designate the relative times of images taken at regular time intervals.

In addition, the Board stated that distinguishing feature (1) merely relates to presentation of information and thus could not contribute a technical effect:

The feature merely informs the user about a property of the currently displayed items (i.e. their span). Features directed to the presentation of information may contribute to the technical character of the invention if they credibly assist the user in performing a technical task (T 336/14 – Presentation of operating instructions/ GAMBRO, headnote; T 1802/13 – Brain stimulation/ CLEVELAND, point 2.1.5). … however, the claimed GUI does not prompt or otherwise incite the user to use the displayed information in a particular way. Instead, it is entirely up to the user to make sense of the displayed information and to decide what to do with it.

In response, the appellant argued that:

Changing the width of the navigation element provided a better sense of the range spanned by the displayed items. This improved the user’s navigation through the content items, i.e. assisted the user to find an item of interest while reducing the number of necessary user interactions. This, in turn, reduced the usage of the device’s computing resources and extended its battery life.

The Board agreed with the Appellant that an improved navigation and reduced usage of computing resources are technical effects. However, the Board was not convinced that these effects are credibly achieved:

The width of the navigation element might indeed give the user a better sense of the range spanned by the displayed items. But this range provides no information about the property values of the individual items (whether displayed or not). Hence, when the user looks for an item with a particular property value, the width provides no guidance about the position of this item within the list of content items.

The Appellant tried to convince the Board of said technical effect by arguing that:

The invention improved navigation of items with unevenly distributed properties, such as chronologically sorted items separated by irregular time intervals. The width of the navigation element reflected the density of the displayed items. A larger width indicated that the displayed items were sparsely distributed and that the user could quickly navigate through the items by dragging the navigation element along the navigation list. A smaller width indicated that the displayed items were densely distributed and that there was a higher risk of overlooking an item due to a high scrolling speed. A smaller width thus suggested to the user to change to the slower navigation mode of swiping through the displayed items.

However, the Board did not follow this argumentation. While the Board agreed that the user could navigate through the list in the described manner, the alleged technical effect of “changing from quick to slow navigation mode based on the width of the navigation element” is neither derivable from the application nor would it be self-evident for a user to actually use the interface in this manner.

As the second distinguishing feature merely defines an obvious choice of an alternative computing environment, the idea of implementing a GUI with a scrollbar on a portable device with a touchscreen is not based on any technical considerations, but merely follows the general trend in technology at the priority date of the application (2012). Additionally, the Board did not see any obstacles for the skilled person for the implementation of the GUI of D2 on a portable device with a touch screen, because this would merely require an adaption of the mouse operations to their touch screen equivalents.

Therefore, the Board decided that the subject-matter of the claim 1 was not inventive and the appeal was dismissed.

More information

You can read the full decision here: T 2760/18 (Enhanced scrollbar/BLACKBERRY) of January 26, 2023, of the Technical Board of Appeal 3.5.01.

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Over the air provisioning of soft cards: non-technical

This decision concerns over the air provisioning of soft cards. However, the Board did not grant a patent, because the distinguishing features were either considered as mere technical implementations of non-technical business requirements or direct consequences of these business requirements. 

Here are the practical takeaways from the decision T 0991/19 (Over the air provisioning of soft cards on devices with wireless communications capabilities/MASTERCARD) of February 16, 2023, of the Technical Board of Appeal 3.4.03.

Key takeaways

A plurality of distinguishing features are no indication for the presence of an inventive step.

Features which are direct consequences of a non-technical constraint such as a business requirement cannot contribute to an inventive step.

The invention

The invention is a system that provides over the air (OTA) soft cards from a card issuer 116 to an application 102 residing on a device with wireless communication capabilities. A user may initiate via an user interface of the device the provisioning of a soft card. The provisioning server 108 receives the request. Once the device is authenticated, a card issuer 116 associated with the requested soft card is identified by means of a card identifier included in the request. Once the card issuer 116 is identified, the IP address of the corresponding provisioning server 110 associated with the identified card issuer 116 is determined and the IP address together with a challenge question is transmitted to the device over an air interface. Once the provisioning server 110 receives the corresponding challenge question and a personal account number (PAN) from the device, the server 110 provides the soft card information to the device.

Fig. 1 of EP 2 937 829 A1

  • Claim 1 of Main Request

Is it patentable?

Both the Board in charge and the Appellant agreed that claim 1 differs from the closest prior art by the following features:

  1. A soft card is requested wherein the request includes a personal account number (PAN).
  2. The transmission of the provisioning data is carried out after authentication of the requesting device including a challenge question and response.
  3. The provisioning configuration server comprises a database which is used to map the PAN to the issuer identification number (IIN) and the IP-address of the provisioning issuer server.
  4. Secure channels are used for provisioning the soft card.

It was also common ground that the claim represents a combination of technical and non-technical features. Therefore, the COMVIK approach had to be applied (see our post “What is the COMVIK approach?” for further details). However, there was disagreement with respect to the separation between technical and non-technical features.

The appellant argued as follows:

The present invention deals with a system wherein the PAN did not present non-technical business data related to the personal account, but concerned technical routing information.

The appellant underpinned this statement by stating:

The PAN represents a data package wherein the first six digits of the PAN are routing information which allowed a link between the specific bank and the soft card.

Accordingly, the appellant argued that the claimed subject-matter involves an inventive step for the following reasons:

D1 does not teach a one-to-one correspondence between the application at the device side and the provisioning issuer server at the bank side.

Instead, the applications of D1 refer to standardised application stored at a plurality of servers.

Accordingly, the skilled person would rather go back to a direct one-to-one correspondence between the device and the card issuer, instead of reducing the one-to-a-plurality correspondence between the device and the provisioning issuer server including an interposed provisioning configuration server.

In addition, the system set-up of D1 does not foresee a data base at the provisioning server.

Due to the fact that many adaptions have to be made to the system of D1 to arrive at the claimed subject-matter, this plurality of adaptions indicates the presence of an inventive step.

However, the Board did not follow the arguments presented by the appellant and instead argued:

The first differentiating feature mentioned above, namely the provisioning of a soft card instead of an application (or a new service), is a non-technical feature as it is the consequence of the purely administrative stipulation of the business person. A soft card is necessarily linked to a personal account number (PAN) in order to debit the correct account when using the soft card. Therefore, the inclusion of a PAN in the request is a non-technical feature which the business person prescribes in order to allow correct assignments.

Since this first differentiating feature is non-technical and no further technical effect can be related to it, it cannot provide a basis for an inventive step.

With respect to the second and fourth distinguishing feature the Board argued:

Directly related to this non-technical administrative stipulation to provide a soft card are the second and fourth differentiating features mentioned above. The implementation of a soft card request requires security measures that are realised by the second and fourth differentiating features. The use of a secure channel, the authentication of the requesting device, and the security protection using challenge question and response are technical implementations of the non-technical business requirements which the business person indicates in relation with the soft card request.

Accordingly, the Board followed that also the second and fourth feature could not contribute to an inventive step.

Regarding the third feature, the Board argued:

The requirement of a one-to-one correspondence between the delivered soft card and the provisioning issuer server, instead of a one-to-a-plurality correspondence as known from document D1, is directly linked to the decision that the over the air delivered item is a soft card and not like in document D1 any standardised application. A soft card cannot be linked to a plurality of servers like it is possible for a standardised application.

It is a business requirement that a soft card has to be securely linked to an individual bank account which in turn is linked to an individual bank server, namely the provisioning issuer server. Consequently, the one to-one correspondence between the soft card and the provisioning issuer server is related to a business requirement and cannot contribute to inventive step, either.

When implementing this one-to-one correspondence at the provisioning configuration server, it appears obvious for the skilled person to use a database for this purpose. It is common general knowledge that any correspondence between two entities according to predefined assignment rules can be straightforwardly implemented using a database.

Therefore, the use of a database and its location at the provisioning configuration server are obvious implementations and adaptations of the teaching of document D1 in combination with the non-technical business constraint of delivering a soft card.

Finally the Board addressed the argument of the appellant that a plurality of adaptions were necessary to arrive at the claimed subject-matter:

It is true, that a plurality of adaptations has to be made when starting from document D1 in order to arrive at the subject-matter defined in claim 1. However, the number of adaptations as such cannot be an indication of the presence of an inventive step or not.

All these adjustments are either related to administrative requirements or are standard measures based on obvious considerations that are part of the common general knowledge of the skilled person.

Therefore, the Board decided that the subject-matter of the claims was not inventive and the appeal was dismissed.

More information

You can read the full decision here: T 0991/19 (Over the air provisioning of soft cards on devices with wireless communications capabilities/MASTERCARD) of February 16, 2023, of the Technical Board of Appeal 3.4.03.

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Correlating media consumption of a user with demographic data: non-technical

The application underlying this decision relates to correlating media consumption of a user with corresponding demographic data of the user. However, the European Patent Office refused to grant a patent since claim 1 merely relates to the obvious technical implementation of a business method. Here are the practical takeaways of the decision T 1049/19 (DETERMINE IMPRESSIONS USING DISTRIBUTED DEMOGRAPHIC INFORMATION/The Nielsen Company) of December 13, 2022 of Technical Board of Appeal 3.4.03:

Key takeaways

If the claimed non-technical features do not interact with
claimed technical features such that they produce a further
technical effect, for the assessment of inventive step one may
– either include the corresponding aim to be achieved in a
non-technical field in the formulation of the problem as part
of the framework of the technical problem that is to be
solved,
– or else take the corresponding business scenario as the
starting point for the problem and solution approach.

The invention

The application underlying the present decision mainly concerns monitoring of media consumption behavior of a client and linking the behavior to demographic data of the client (e.g., location, age etc.).  Section 3 of the present decision gives an illustrative example for understanding the business idea underlying the present application. In short, a questionnaire is used to evaluate the behavior from clients by a corresponding “first server”.  In exchange for filling out the questionnaire, the client is promised to receive a free magazine subscription once the client provides his address.

In case the client did already provide said information previously, the media consumption behavior can be logged together with the provided address without further ado.

However, should the client refuse to provide his personal data to the “first server”, the “first server” searches for a trusted third party (e.g., the client’s favorite sports club), and offers to the client a corresponding benefit (e.g., chance of winning free tickets) if he transmits the filled out questionnaire together with his membership number to the “second server” of the trusted third party. Should the client accept this offer as well as the corresponding “terms of use” and transmit the corresponding information, the “second server” will forward the questionnaire together with the demographic data, which was already stored at the “second server” due to the membership of the client, to the “first server”.

Should the client still refuse to provide his personal data, the “first server” merely loggs the questionnaire data without demographic linkage.

Fig. 1 of WO 2012/040371 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request)

Is it technical?

For assessing technicality, the Board considered the above-described (non-technical) business scenario. For this purpose (i.e., construction of the business scenario), the Board replaced or deleted all technical features of claim 1 with business related equivalents (see section 3.1.8 of the present decision). As a result, the follwing technical features were identified:

  • (a) “a client computer being connected to the Internet”,
  • (b) “the first server being connected to the Internet” and
  • (c) “the second server being connected to the Internet”.

Closest prior art?

Regarding the identifying of the closest prior art the Board stated the following:

According to the “COMVIK approach” (cf. T 641/00)
non-technical features within the meaning of
Article 52(2)(c) EPC, e.g. features related to business
methods, cannot contribute to inventive step. These
features can thus be included in the formulation of the
technical problem. Therefore, the aim to be achieved in
a non-technical field may legitimately appear in the
formulation of the problem as part of the framework of
the technical problem that is to be solved (see G 1/19,
point 31; “Case Law of the Boards of Appeal of the
European Patent Office”, 10th edition, 2022, sections
I.D.9.2.1 to 9.2.6).

However, the Board further stated that in case that the claimed non-technical features do not interact with claimed technical features such that a further technical effect is achieved one can either:

  1. Include the corresponding aim to be achieved in the non-technical field (i.e., the business aspect) in the formulation of the problem to be solved, or
  2. Take the corresponding business scenario as the starting point for the problem and solution approach.

In the present case, the Board decided that the business scenario should serve as the starting point for the problem and solution approach. Notably, it was not considered as necessary by the Board to cite a “prior art” document disclosing this business method. Instead, the business scenario itself (i.e., as outlined in the present application) was considered as closest prior art and thus as spring-board for the problem and solution approach.

Inventive aspects?

According to the Board, the distinguishing features a-c (see above) do not provide a further technical effect. Instead, these features allegedly merely relate to automate the business scenario by implementing it in a digital system.

Therefore, the Board formulated the technical problem as how to implement the scenario into a network computer system.

Regarding said implementation the Board stated:

The solution is straightforward and leads via technical
means (a) to (c) – as disclosed e.g. in D1 or D3 –
directly to features (A) to (P). Consequently, the
subject-matter of claim 1 is obvious over the common
general knowledge of the skilled person in combination
with a standard computer network.

On the contrary, the Appellant argued that:

the “notional business
person” (cf. T 1463/11, reasons 16, T 288/19, reasons
3.4.3 ff, T 698/19, reasons 3.6.4, T 524/19, reasons
2.7.5) was not able to implement this scenario, because
technical skills for establishing the computer
communication and knowledge about programming cookies
would be required. A “real business person” having
technical knowledge about cookies and java scripts instead of a “notional business person” without such
skills was therefore in fact considered.

However, the Board did not follow these arguments. Instead, the Board emphasized that:

the “notional
business person” (cf. T 1463/11) only constructs the
business scenario and does not need to have any
technical knowledge (features (A’) to (P’)). The
objective technical problem of the “technically skilled
person”, i.e. a computer engineer, is then to implement
the business scenario into a network computer system.
This technical implementation is a straightforward
technical task which does not need any inventive
skills. The expert providing the technical
implementation (features (a) to (c)) does not consider
changing the business scenario and takes the business
boundary conditions of the scenario for granted.

The Board further stated that the claim does not include any further specifications regarding the implementation (e.g., using cookies or specific java scripts). Accordingly, the distinguishing features would merely relate to an obvious technical implementation of the business concept for the skilled person

As a result, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1049/19 (DETERMINE IMPRESSIONS USING DISTRIBUTED DEMOGRAPHIC INFORMATION/The Nielsen Company of December 13, 2022.

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Sparsely connected neural network: non-technical

The application underlying this decision relates to a sparse neural network architecture. However, the European Patent Office refused to grant a patent since claim 1 specifies an abstract computer-implemented mathematical operation on unspecified data, i.e., approximating the weight values of the network. Here are the practical takeaways of the decision T 0702/20 (Sparsely connected neural network/MITSUBISHI) of November 7, 2022 of Technical Board of Appeal 3.5.06:

Key takeaways

An abstract structure or training of an artificial neural network without at least implicitly stating a specific use case is considered as non-technical.

The invention

The application underlying the present decision mainly concerns an adaption of the connections between layers of a neural network. In detail, the application discloses a concept called “loose couplings” which reduces the number of connections between the nodes of the several layers of the neural network compared to conventional fully-connected architectures as illustrated by the dotted lines in  Fig. 2 as shown below (cf. paras. [0004] and [0008] of the application). The “loose couplings” are defined by a sparse parity-check matrix of an error correcting code such as a LDPC code, spatially-coupled code or pseudo-cyclic code (cf. para. [0031] of the application).

Fig. 2 of EP 3089081 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request)

Is it technical?

Both the Board in charge and the Appellant agreed that claim 1 distinguishes itself from the closest prior art by means of the “loose couplings” as defined by the feature:

neural network being formed by loose couplings between the nodes in accordance with a sparse parity-check matrix of an error correcting code, wherein the error correcting code is a LDPC code, spatially-coupled code or pseudo-cyclic code

The Appellant’s arguments may be structured as follows:

A first argument of the Appellant addressed the achieved effects “within a computer” due to the provided architecture and stated that:

Machine learning serves a technical purpose by solving a well defined technical problem by mathematical means.

In order to support this statement, the Appellant referred to decision T 1326/06 from which the Appellant followed:

methods relating to data encoding and/or decoding can serve a technical purpose even though they are almost entirely based on mathematical algorithms and used for encrypting and decoding abstract data.

Accordingly, the Appellant argued that:

the possibility that the neural network apparatus may process, unknown, possibly abstract data in- and outputs should not necessarily take away the technical character of the distinguishing feature,

and supported this statement by referring to T 0697/17 according to which describing a technical feature at a high level of abstraction does not necessarily take away the feature’s technical character.

Therefore, the Appellant argued that the technical problem of improving the learning capability and efficiency of a machine is solved by reducing the required computational resources and preventing overfitting.

A second argument of the Appellant addressed the neural network as an automation tool:

The Appellant argued that:

an artificial neural network was a mathematical algorithm meant to mimic the human brain, by replicating biological optimization. It was implemented and trained in hardware, on a computer … It allowed the automation of complex tasks, so that the computer could perform them instead of a human.

With automation being generally recognized by the case law as a technical problem, the Appellant concluded that a neural network is not an abstract mathematical method, but instead uses mathematics to solve a technical problem. Accordingly, the present application would contribute to said domain by providing a new network structure allowing for a more efficient implementation by reducing computing and storage requirements.

However, the Board did not follow these arguments:

Regarding the allegedly achieved effects “within the computer”, the Board stated that:

while the storage and computation requirements are indeed reduced in comparison with the fully-connected network, this does not in and by itself translate to a technical effect, for the simple reason that the modified network is different and will not learn in the same way [as the fully-connected network]. So it requires less storage, but it does not do the same thing.”

The Board also provided an example in which they outline:

For instance, a one-neuron neural network requires the least storage, but it will not be able to learn any complex data relationship.

Therefore, the Board followed that:

the proposed comparison is incomplete, as it only focuses on the computational requirements.

Regarding the neural network as an automation tool, the Board stated that;

[it] sees no evidence that a neural network functions like a human brain. While its structure is inspired by that of the human brain, this does not imply that they can actually function like one.

A general “brain automation problem” can thus not be considered as solved by claim 1. In addition, as claim 1 does not further specify any particular task (i.e., the type of relationship to be learned), claim 1 does also not solve a corresponding automation problem.

As a result, the Board concluded that the claim as a whole merely specifies abstract computer-implemented mathematical operations on unspecified data. Accordingly, it’s subject-matter cannot be said to solve any technical problem and thus does not go beyond a mathematical method in the sense of Article 52 (2) EPC, which is implemented on a computer.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0702/20 (Sparsely connected neural network/MITSUBISHI) of November 7, 2022

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Linking place information based on position: non-technical

The application underlying the present decision relates to a server search service . However, the European Patent Office refused to grant a patent since the distinguishing features would merely relate to linking of cognitive data. Here are the practical takeaways of the decision T 1615/17 (Linking place information based on position/RAKUTEN) dated October 21, 2022 of Technical Board of Appeal 3.5.01:

Key takeaways

Defining a technical parameter as input for an algorithm is not sufficient to provide for a technical effect. There have to be further technical considerations about how the algorithm utilizes the technical parameter.

The invention

The present invention relates to a service that allows a user to search for information relating to a facility (e.g., a store or a restaurant) based on geographical location. A server stores information about the facilities in a corresponding database and provides the search functionality to users of mobile terminals.

The users may populate the database (i.e., a user may give a name to a facility at a geographical position). Accordingly, the problem may arise that different users input different information describing the same facility. For example, position information of the facility may differ because the devices of the respective users utilize different positioning systems. As a result, the server may have issues recognizing that the user actually describe the same facility resulting in poor search results (cf. application as filed, para. [0004]).

In order to overcome this problem, the present invention proposes to group information records relating to positions included in a predetermined geographical range and having names that are associated with each other according to a dictionary. Finally, the resulting records are assigned a common identifier in the database allowing to appropriately link the information to the facility/place (cf., application as filed, paras. [0005] and [0006]).

Fig. 5 of EP2650839 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main request)

Is it technical?

The examining division argued that claim 1 merely distinguishes itself from the prior art in the handling of cognitive data. The appellant argued that the subject-matter of claim 1 achieves the technical effect of improving a database being in an inaccurate state (i.e., having multiple uncorrelated records relating to the same facility) resulting in improved search functionality of the server.

Furthermore, the appellant argued that:

The generation of dictionary data and the grouping of information was performed automatically by analyzing position data having a latitude and a longitude. Such data was technical by nature as it had been measured by a position measurement system. According to G 1/19 -Pedestrian simulation, measurements had technical character.

The invention was motivated by technical considerations of the position measurement system. It would have required technical expertise to recognize that a position acquired by means of a GPS function was prone to measurement errors, since the GPS receiver was subject to different noise and/or reception conditions varying among different devices.

However, the Board did not follow the appellant’s argumentation. Relating the linking of the records, the Board stated:

The Board’s view is in line with decision T 309/10 -Archival and retrieval/MULTEX which held that linking data records by means of a common identifier (parent identifier) was an administrative matter that did not contribute to inventive step under the “Comvik approach”. The Board in that case compared the indexing of database records with the work of a librarian (see point 9). The librarian would choose one representative form for all the variants of each entry (e.g. “IBM”, “iBM”, “IbM”, and so on). There would be nothing technical in what the librarian would be doing. He would simply be a good administrator, solving the non-technical problem of storing and locating data (books).

The Board further did not follow the appellant’s argument regarding the technical position data:

In the Board’s view, the position data is cognitive information just like the names given to the positions in claim 1 and data entries in T 309/10. A position is just a point in a geographic coordinate system. Claim 1 does not contain any features relating to how the position information was measured using e.g. GPS, but even if it did, the position information is simply given as an input to the algorithm. The position information does not retain any technical character related to how it was measured in the subsequent data processing.

Moreover, the Board does not consider that the association of information in claim 1 involves any technical considerations of how the position information was measured. Indeed, the same algorithm would apply if the position information was inputted manually by the user or a database administrator. Such manually inputted data would also be “inaccurate” due to human error or the lack of an agreed format. In previous cases of the Boards of Appeal (see for example T 1234/17 – Customization based on physiological data/ADIDAS AG, and T 1798/13 – Forecasting the value of a structured financial product/SWISS REINSURANCE COMPANY LTD), it has been held that it is not enough that an algorithm makes use of a technical quantity in the form of a measured physical parameter for it to be technical. What matters is whether the algorithm reflects any additional technical considerations about the parameter, such as its measurement. As set out above, the Board does not see any  such additional technical considerations in the present case.

Finally, the Board stated:

That the improvement of the search results, which potentially leads to fewer search queries, is a mere consequence of the non-technical organisation of data. The only difference between this effect and the non-technical effect of a library indexing scheme is that the claimed invention is implemented on a computer system comprising a server and a number of mobile devices. However, this is not enough to confer technical character to the method of organising data. There has to be a further technical effect going beyond the normal effect of implementing something on a computer system. The Board does not see any such further technical effect in this case, because the invention does not improve the functioning of the server in a technical sense.

Accordingly, the Board did not see a further technical effect or motivation based on technical considerations

As a result, the Board stated that claim 1 of the main request does not provide any technical effect which goes beyond the straightforward implementation of an algorithm.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 1615/17 (Linking place information based on position/RAKUTEN)

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Classification of search engine resources using deep learning: non-technical

The application underlying the present decision relates to spam classification of search engine resources. However, the European Patent Office refused to grant a patent since the distinguishing features relating to the allegedly non-technical spam classification would not produce a technical effect. Here are the practical takeaways of the decision T 0874/19 (Classifying resources using a deep network/GOOGLE) dated July 6, 2022 of Technical Board of Appeal 3.5.07:

Key takeaways

Classification of non-technical features cannot produce a technical effect.

Spam classification is a non-technical problem.

The invention

According to the present application, internet search engines aim at identifying resources relevant to a user’s needs or interests. A user submits a search query and receives a set of search results, each of which identify a corresponding search enginge resource (cf. application as filed, page 1, background section).

In order to avoid manipulation of these search results by a spammer, the present application discloses an approach that classifies search engine resources as either a spam resource (i.e., the resource belonging to the “spam” cateogry) or as a not spam resource (i.e., the resource beloning to the “not spam” category) (cf. application as filed, page 5). For this purpose, a score representing a predicted likelihood is generated for each category.

Fig. 1 of WO 2014/160282 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main request)

Is it technical?

According to the Board, in accordance with the Appellant’s view, D1 forms the closest prior art for the subject-matter of claim 1.

D1 discloses the idea of combining deep-learning and large-margin discriminative learning called “DNet-kNN” based on a deep encoder network. The approach of D1 is applied to classify newsgroup text data into four categories (“computer”, “recreation”, “science” and “talks”).

Compared to D1, the Board identified the following distinguishing features over D1:

a respective category score (226) for each category in a pre-determined set of categories,

wherein each of the respective category scores measure a predicted likelihood that the resource belongs to the corresponding category.

Regarding the claimed categories the Board noted that these may be:

a “spam” category and a “not spam” category

a “not spam” category and a category for each type of spam, such as “content spam”, “link spam” and “cloaking spam”, etc.

a category for each resource type of a group of resource types, including “news resources”, “blog resources”, “forum resources”, “shopping resources”, “product resources” and “political resources”

However, according to the Board, it was not apparent what further technical effect the distinguishing features relating to these categories could produce nor what objective technical problem is to be solved.

The appellant argued that following decision T 1227/05 (Circuit simulation I/Infineon Technologies) the claimed system could at least be regarded as simulating a hardware circuit that classifies inputs and thus has a technical purpose.

However, the Board stated:

The board considers that decision T 1227/05 cannot be followed as argued by the appellant in view of the recent decision G1/19, Reasons 133.

As a result, the Board stated that claim 1 of the main request does not provide any technical effect which goes beyond its straightforward implementation in one or more computers.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0874/19 (Classifying resources using a deep network/GOOGLE)

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Scoring concept terms for online advertising using deep learning: non-technical

The application underlying the present decision relates to generating scores for concept terms using a deep neural network. The scores may then be used to select the optimal keywords for online advertising auctions . However, the European Patent Office refused to grant a patent since the the distinguishing features would only refer to the mere automation by means of one or more computers. Here are the practical takeaways of the decision T 0872/19 (Concept terms scoring/GOOGLE) dated October 14, 2021 of Technical Board of Appeal 3.5.07:

Key takeaways

Classifying features of a web page to improve the placement of advertisements is not technical.

The invention

The Board in charge summarized the invention underlying the present decision as follows:

  1. The application relates to online advertisement auctions. When an online advertisement auction is to be conducted to select one or more advertisements to be included in a particular presentation of a resource (for example, a web page), resource features are extracted from the particular resource.
  2. A concept term scoring system 100 uses the received resource features to predict a vector of scores that includes a score for each of the set of concept terms. A score for the concept term represents the predicted “relevance” of the concept described by the term to the resource. The concept term scoring system 100 can generate a score for each of a set of concept terms that may be used as advertising keywords for selecting advertisements for participation in the auction.
  3. The system can select a specified number of one or more highest-scoring concept terms or each concept term having a score that
    satisfies a threshold value as advertising keywords to be used in selecting candidate advertisements for participation in an online advertising auction.

 

Fig. 1 of WO 2014/160344 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main request)

Is it technical?

According to the Board, in accordance with the Appellant’s view, D1 forms the closest prior art for the subject-matter of claim 1 of. The Board identified the following distinguishing features over D1:

In the Board’s view, D1 does not disclose a classifier configured to generate a respective relevance score for each concept term in a pre-determined set of concept terms, wherein each of the respective relevance scores measures a predicted relevance of the corresponding concept term to the resource.

Based on the above-identified distinguishing features, the Board in charge discussed the existence of a technical effect concerning these features as follows:

The Board pointed to the fact that concept terms might be “advertising keywords” which are “relevant” to a resource (e.g., a web page determined by its URL). As a result, the keywords most relevant for the resource in terms of advertising can be selected.

Accordingly, the Board stated that increasing the relevance of a resource for advertising is a non-technical effect. Instead, it relates to a method of doing business, wherein the relevance to the resource of the advertisement could be measured in clicks by users on the advertisement embedded in the resource. Thus, the “relevance” of the advertisement to the resource appears to be linked to the semantic content or visual attractiveness for the user accessing the resource (e.g., web page), which does not consitute a technical feature.

As a result, the Board stated that claim 1 of the main request does not provide any technical effect which goes beyond the mere automation of a business method.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0872/19 (Concept terms scoring/GOOGLE)

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Evaluating real estate: non-technical

The application underlying this decision relates to a system for automatically determining the value of real estate based on parameters such as prices of other properties in the same geographical area, view etc. However, the European Patent Office refused to grant a patent since claim 1 mainly addresses the automation of a business method. Here are the practical takeaways of the decision T2295/18 Evaluating real estate/TECNOCASA) of July 20, 2022 of Technical Board of Appeal 3.5.01:

Key takeaways

Using technical means for implementing a non-technical process cannot render the process technical.

Implementing a non-technical process using technical means needs to procude a technical effect that goes beyond the sheer technical implementation.

The invention

The application underlying the present decision mainly concerns the automatic determination of a real estate value. In order to determine a meaningful value for the real estate, prices of other properties in the same geographical area are evaluated. Therefore, items (i.e., real estate) in a real estate database are analysed to determine a homogenous area within a given radius around the geographical location of the real estate property to be evaluated. Based on the real estate data of said homongenous area a minimum and maximum economic value of the real estate property is computed.

Fig. 3 of WO 2014/080432 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request)

Is it technical?

In esssence, the applicant argued:

“The claimed system performs technical operations on technical data. Processing, aggregating and analysing real estate data involves technical algorithms and the computations are performed technically i.e. using technical means. It would not be possible to perform the calculations manually”

Furthermore, the applicant argued:

“Data defining a geographical location (coordinates) and a geographical area (a radius around a centre point) are technical by definition. The “standardisation” of data is also technical.”

However, the Board did not follow the applicant’s arguments. The Board referred to decision T 1463/11 (introduction of the notional business person) and stated:

“In the Board’s view, the claimed invention does not produce a technical effect that goes beyond the implementation of a business method on a networked computer system.”

The Board argued as follows:

Determining the economic value of real estate is inherently non-technical. Indeed, it is an activity normally performed by a real estate agent lacking technical knowledge and skill. In other words, this activity falls within the domain of the “notional business person”.

The fact that the determination of the real-estate value involves mathematical calculations does not matter, because mathematical methods are also excluded under Article 52(2) EPC.

The fact that the calculations cannot in most circumstances be performed purely mentally or manually using pen and paper is not decisive for assessing technical character. The sheer complexity of a method does not render the method technical (see for example T 914/02).

Using a computer for aggregating, analysing, and processing data is technical, but merely using a computer for performing a method is not enough to make the whole method technical (see for example T 1670/07 – Shopping with mobile device/NOKIA), point 9). There has to be a further technical effect beyond this.

Geographical data just indicates a location, which is not technical perse. The “standardisation” of data in claim 1 is part of the non-technical method of calculating the value of real estate and addresses the non-technical problem of real-estate belonging to different “categories” being included in the calculation.

As a result, the Board stated that the implementation of the non-technical process of evaluating real estate on the prior art computer system would have been routine for the skilled person.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T2295/18 Evaluating real estate/TECNOCASA) of July 20, 2022.

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Web service user experience without upfront storage expense: non-technical

The application underlying this decision relates to allowing prospective users of a web service to access only parts of the available functionality to reduce resource consumption. However, the European Patent Office refused to grant a patent since claim 1 mainly addresses the implementation of a business decision. Here are the practical takeaways of the decision T 0909/14 (Web service without upfront storage/MICROSOFT) of June 3, 2022 of Technical Board of Appeal 3.5.01:

Key takeaways

Features, even if based on technical considerations, may be considered non-technical if they are devisable from a business decision.

A user interface simulation is considered as representation of information and thus non-technical.

The invention

The application underlying the present decision mainly concerns optimizing the resource usage (e.g., server resources) of web services by limiting corresponding functionality based on a user’s account status (i.e., full or light/prospective). While a full user may make full use of the capabilities of the services due to corresponding allocated resources, a light user may only use certain (i.e., reduced) functionality of the service. The application addresses a situation in which a full user invites another (prospective) user to the web service. A light profile may be created for the prospective user allowing the prospective user to utilize a limited set of functionality via a simulated user interface. If the prospective user expresses the intent to fully utilize the web service capabilities, corresponding resources may be allocated on the server and the prospective user’s user interface will be updated accordingly. As a result, resources are only allocated for those types of users, who intent to make full use of the web service’s capabilities.

Fig. 5 of WO 2009/045757 A1

Here is how the invention is defined in claim 1 of the main request:

  • Claim 1 (Main Request)

Is it technical?

For assessing inventive step, the Board in charge started from prior art document D5, relating to sharing a service in which all users have accounts of a first type (i.e., full user). It was common ground that D5 only discloses the first part of the preamble (underlined part) and feature 4.

According to the Board, the main point of the dispute is:

“Whether discriminating between full users and prospective users with limited functionality is the solution to the technical problem of saving resources or a non-technical requirement that could be envisaged by the business person.”

The applicant argued:

“The key idea of discriminating between full users and prospective users with fewer resource came from technical considerations of saving server resources, for example storage space for document’s meta data and this could not be ascribed to the business person.”

Furthermore, the applicant argued:

“Presenting a prospective user with a simulated interface of a full user was technically motivated too. It allowed a prospective user to see the full user’s interface from the beginning so that he did not need to explore its functionality from scratch after becoming a full user. This produced the technical effects of increasing the service usability and reducing the time the full user needs to explore the interface after the upgrade and, hence, energy consumption.”

The applicant concluded:

“Even if the creation of a group of prospective user with less functionality were part of the business scheme, it still would not have been obvious to reduce resources given to these users.”

However, the Board did not follow the applicant’s arguments. The Board referred to decision T 1463/11 (introduction of the notional business person) and stated:

“Under the CardinalCommerce approach, the test used in deciding on technicality of a feature is whether the notional business person could have come up with it. This boils down to determining whether there would have been at least one way to devise it without technical considerations.”

Accordingly, even if one would arrive at the feature based on technical considerations, the feature would still be deemed as non-technical. The Board concluded:

“Providing limited functionality for some users, such as not enabling the creation of documents, is a business decision which need not be based on technical considerations. There are apparent business reasons for doing it, for example charging the full user a higher subscription fee than the prospective user.”

With respect to the reduced resource usage, the Board stated that saving computer resources (e.g., storage space for metadata as argued by the applicant) is to be considered as technical. However, the Board argued that this is neither claimed nor disclosed in the application. In contrast, claim 1 only refers to saving resources on the server, which may also relate to limiting resources to reduce costs.

The Board also did not follow the applicant’s arguments regarding the alleged technical effect achieved by simulating the user interface and referred to the “broken technical chain fallacy” of T 1670/07. According to the Board, the simulation of the user interface relates to the presentation of information and is thus not based on any technical considerations.

As a result, the Board stated that the notional business person would have instructed the skilled person with implementing a non-technical business scheme based on the system of D5, which would have been obvious for the skilled person.

Therefore, the Board dismissed the appeal due to lack of inventive step.

More information

You can read the whole decision here: T 0909/14 (Web service without upfront storage/MICROSOFT) of June 3, 2022.

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