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User device configured to function as PoS terminal: Technical

The application relates to online payments, particularly by using the user’s device instead of the merchant’s PoS terminal.  The Examining Division argued that the PoS configuration reflected merchant business rules and that deploying these to the user device was merely a straightforward implementation on a known payment system architecture. The Board disagreed and indicated that while the abstract aim of avoiding transmission of card data to the merchant may originate from the business person, the solution requires technical knowledge of the system architecture and falls within the expertise of the technically skilled person. Thus it was considered technical. 

Here are the practical takeaways from the decision: T 1392/20 (User device configured to function as PoS terminal/HILLOA) of July 15, 2025, of the Technical Board of Appeal 3.5.01.

Key takeaways

While the abstract goal of avoiding the transmission of card data to the merchant may come from the business person, it may include features that define a specific technical solution for achieving it.

Steps involve modifying the existing system infrastructure, including how the user device is configured and integrated into the payment flow require technical knowledge of the system architecture and fall within the expertise of the technically skilled person – not the business person, who may define the desired business objective but lacks the competence to specify the structural and functional changes needed to implement it.

The invention

The Application defined the invention as follows:

1.2 Typically, when making online payments, customers are required to provide their payment card data to the merchant, which poses a risk of fraud. On the one hand, customers may use stolen card data, which is a risk for the merchant. On the other hand, dishonest merchants may misuse the card data, which is a risk for the customer, [0003], [0004]. To address these issues, the invention suggests configuring a user device, such as a smartphone, to function as the merchant’s point-of-sale (PoS) terminal.

1.3 Looking at Figure 5 or 6, a user initiates (2) a payment transaction at a merchant’s website by providing an identifier of their user device. The merchant forwards (3) the identifier to a payment service host operated for example by an acquiring bank. The host retrieves a PoS configuration profile specific to the merchant and sends (4) a corresponding PoS configuration to the user device based on routing data stored in a user device profile. The user device configures a payment application according to the received PoS configuration and reads (5) a payment card using a card reader before processing the transaction, [0051] to [0056] and [0091] to [0099].

Fig.5 of WO 2015/145131 A1

  • Claim 1

Is it patentable?

The Board discussed the distinguishing features over document D4:

4.1 The Board considers that, among the documents cited in the appealed decision, D4 represents the closest prior art, as it is the only document that suggests using a user device, namely the user’s mobile phone, as a card reader in the context of online transactions, with the aim of addressing the typical problems associated with card-not-present payments (see sections 5.4 to 5.6, in particular page 132).

4.2 However, unlike claim 1, the user’s phone in D4 functions as a token reader: during a transaction on the merchant’s website, the user is prompted to present their card to the phone, which reads the card and generates a dynamic code. This code must then be manually entered by the user into the website, which forwards it to a verification host (corresponding to the claimed payment service host) for authentication (see Figure 5.6). In other words, the phone supports user/card authentication, but does not act as a Point-of-Sale (PoS) terminal capable of completing the payment transaction by directly communicating with the payment service host.

4.3 Accordingly, claim 1 differs in that:

1) The payment service host receives a payment request identifying a specific user device for a transaction with the merchant and retrieves a corresponding user device profile, which includes routing data for communication with that device.

2) The payment service host retrieves a PoS configuration profile associated with the merchant and sends a corresponding PoS configuration to the user device based on the routing data.

3) The user device configures a PoS terminal application within a secure element based on the received PoS configuration, enabling it to act as the merchant’s PoS terminal and complete the payment transaction by communicating directly with the payment service host.

The Examining Division had considered these features to be non-technical:

4.4 The examining division considered the PoS configuration profile to represent a set of business rules or preferences defined by the merchant. They also held that deploying such preferences to the user device as in features 1) to 3) was a straightforward implementation of a non-technical business requirement on a generally known payment system architecture.

However, the Board disagreed:

4.5 The Board takes a different view. While the abstract goal of avoiding the transmission of card data to the merchant may come from the business person, features 1) to 3) define a specific technical solution for achieving it. In particular, the payment service host is configured to retrieve a PoS configuration associated with the merchant and to send it to the user device, which then configures a secure application accordingly. This enables the user device to read card data and communicate directly with the payment service host to complete the transaction.

These steps involve modifying the existing system infrastructure, including how the user device is configured and integrated into the payment flow. Such changes require technical knowledge of the system architecture and fall within the expertise of the technically skilled person – not the business person, who may define the desired business objective but lacks the competence to specify the structural and functional changes needed to implement it (T 1463/11 – Universal merchant platform/CardinalCommerce, T 1749/14 – Mobile personal point-of-sale terminal/MAXIM, point 5).

The Board therefore concludes that features 1) to 3) contribute to the technical character of the invention and must be assessed for obviousness in light of the prior art.

While the Board did not wholly agree with the technical problem formulated by the applicant, it still considered the subject-matter inventive for the following reasons:

4.6 The appellant argued that features 1) to 3) enhanced security by ensuring that the card data was sent directly from the user device to the payment service host, thereby bypassing the merchant.

The Board is not convinced that this results in a security advantage over D4. In D4, a unique dynamic code is generated from the card data by a cryptographic module for each transaction (see sections 5.5 and 5.6 of D4). Since the merchant receives only this code, the card data likewise remain protected from the merchant.

4.7 Thus, features 1) to 3) rather provide an alternative online transaction system in which the user’s payment card data are not shared with the merchant.

Starting from D4, the Board does not see how the skilled person would arrive at the solution of claim 1. While the Board agrees with the examining division that the remote provisioning of software on user devices was generally known at the priority date, there is no apparent reason, except in hindsight, to change the user device’s functionality so that it acts as a PoS terminal directly completing the transaction.

Therefore, the Board considered that the subject-matter was inventive.

More information

You can read the full decision here: T 1392/20 (User device configured to function as PoS terminal/HILLOA) of July 15, 2025, of the Technical Board of Appeal 3.5.01.

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Setting warning intensity by weighing collision risk against loss of control of the motorcycle: non-technical

The application relates to collision warning.  The Applicant argued that the rider should be warned of the possibility of a collision in a way that does not distract the rider from an imminent risk of falling, as alerting the rider too abruptly may cause the motorcycle to have an accident that is even worse than the collision. However, the Board disagreed and considered that outputting a warning whose intensity is based on the risk of losing control of the motorcycle is a non-technical risk assessment.

Here are the practical takeaways from the decision: T 0813/23 of July 15, 2025, of the Technical Board of Appeal 3.5.04.

Key takeaways

Weighing up the collision risk against the risk of losing control of the motorcycle at a larger bank angle is a non-technical consideration.

Outputting a second warning “whose intensity of output is lower than the first warning and/or a warning that is output in a change pattern of a longer cycle than the first warning” in the event that the bank angle is larger than the reference bank angle means that the risk of losing control of the motorcycle at a larger bank angle is given a higher weighting than the collision risk. It is this non-technical risk assessment which is specified by the distinguishing features.

The invention

The Application defined the invention as follows:

[0004] In the conventional collision warning system, there is a case where the warning device outputs such a warning that surprises the rider in a state where the motorcycle turns, that is, in a state where a large bank angle is generated in the motorcycle and a vehicle body becomes unstable. Thus, the rider’s safety is possibly affected.

[0010] In the processing unit, the collision warning system, the motorcycle, and the processing method according to the invention, the warning output by the warning device is changed in accordance with the posture information related to the bank angle of the motorcycle. Therefore, in a state where the motorcycle turns, that is, in a state where the large bank angle is generated in the motorcycle and a vehicle body becomes unstable, the warning device outputs the appropriate warning, and thus the rider’s safety can be improved.

Fig.3 of EP3640916A1

  • Claim 1

Is it patentable?

The Board discussed then discussed the inventive step of Claim 9:

3.1 The examining division identified document D4 as the closest prior art for assessing inventive step (see decision under appeal, point 4.2). This was not contested by the appellant and the board agrees with this assessment.10.1 Claim 9 of auxiliary request 1 starting from D1..

3.3 The subject-matter of claim 1 therefore differs from the disclosure of document D4 in that claim 1 further specifies that the control section is arranged to make the warning device output a second warning that differs from the first warning in the case where the determination section determines that there is the possibility of the collision and the acquisition section acquires the posture information corresponding to the bank angle that is larger than the reference bank angle, wherein the second warning is a warning whose intensity of output is lower than the first warning and/or a warning that is output in a change pattern of a longer cycle than the first warning.

The Applicant argued that the distinguishing feature provided the following effect:

3.5 The appellant argued that the bank angle was used differently in the distinguishing features compared with document D4. In the distinguishing features a relatively high bank angle was an indicator of a risk that alerting the rider too abruptly might cause the rider to lose control of the motorcycle. In contrast, document D4 used an inclination angle of the “own” vehicle as an indicator that the motorcycle had performed an operation to avoid approaching another vehicle.

The appellant submitted that the bank angle related to a physical situation of the motorcycle and the physical forces involved. The distinguishing features therefore had technical character.

According to the appellant the effect of the distinguishing features was to ensure that the rider was warned of the possibility of a collision in such a way that the warning did not distract the rider from an imminent risk of falling due to the actual bank angle of the motorcycle. Alerting the rider too abruptly may cause the motorcycle to have an accident that is even worse than the collision.

However, the Board disagreed:

3.6 The board is not convinced by these arguments for the following reasons.

Firstly, a measurement of an inclination angle of the motorcycle and thus of the parameter characterising the physical situation of the motorcycle and the physical forces involved also takes place in a processing unit described in document D4. The distinguishing features only specify how to modify a warning on the basis of this measurement.

Secondly, weighing up the collision risk against the risk of losing control of the motorcycle at a larger bank angle is a non-technical consideration. Outputting a second warning “whose intensity of output is lower than the first warning and/or a warning that is output in a change pattern of a longer cycle than the first warning” in the event that the bank angle is larger than the reference bank angle means that the risk of losing control of the motorcycle at a larger bank angle is given a higher weighting than the collision risk. It is this non-technical risk assessment which is specified by the distinguishing features.

3.7 Features which do not contribute to the technical character of the invention cannot support the presence of an inventive step (see Case Law of the Boards of Appeal of the European Patent Office, 10th edition, 2022, I.D.9.1).

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

Therefore, the Board considered that the subject-matter was not inventive.

More information

You can read the full decision here: T 0813/23 of July 15, 2025, of the Technical Board of Appeal 3.5.04.

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Hybrid approach of delegating access decision evaluation for building automation and control: Technical

The patent relates to delegating access decision evaluation for building automation.  The Board considered that sending a specific access policy was insufficient for technical effect, and a device-specific access policy using context attributes as variables lacks technical character, since the policy itself need not be based on technical considerations. However, the Board acknowledged that the hybrid approach of delegating the access control decision to the accessed device was technical. Thus, certain claims were considered inventive compared to the others.

Here are the practical takeaways from the decision: T 0588/22 (Access decision evaluation for building automation and control systems/SIGNIFY HOLDING) of May 28, 2025 of the Technical Board of Appeal 3.5.06

Key takeaways

Sending the decision and the device specific access policy to the accessed device is a necessary but insufficient condition for the presence of a technical effect in the central decision evaluation apparatus, since the criteria in a policy need not be technical.

The derivation of a device-specific access policy and the taking of a decision based on it can be non-technical steps which are thus unable to lend inventive step to the claim. For instance, sending the derived policy together with the decision could merely serve the non-technical purpose of informing the accessed device about the reasons for the decision taken.

The hybrid approach, i.e. delegating the access control decisions to the accessed devices, has a clear advantage in a building automation and control system was technical. 

The restriction of the device-specific access policy to only the relevant rules valid for the accessed device seems to be a usual matter for the skilled person of conserving memory space and network bandwidth and, given that the policy need not be technical, the additional feature lacks technical character and is thus unable to contribute to inventive step.

The derivation of the device-specific access policy using context attributes as variables lacks technical character, since the policy itself need not be based on technical considerations.

The invention

The Board defined the invention as follows:

4.2 The invention relates to a building automation and control system (BACS) comprising access decision evaluation, i.e. deciding whether a certain device should be allowed to communicate with or otherwise interact with another device in the system; see page 1, lines 9 to 20, and page 3, lines 21 to 29.

4.3 The invention is aimed at improving the information security of such systems, in particular access control in the sense of authentication (who you are) and authorisation (what you are permitted to do); see page 3, lines 17 to 20. One limitation on improving access control is the delay (latency) such measures introduce between a user giving a command and the system reacting. The invention seeks to reduce latency by combining an initially centralised approach, which offers high scalability, with a subsequently distributed approach, which offers reduced latency; see page 2, line 23, to page 3, line 10. This has been referred to in this case as the “hybrid” approach.

4.4 As illustrated in figure 5, an “accessing device” (10)(defined on page 4, lines 4 to 8), for instance a smartphone, sends an “access request” (20) to an “accessed device” (defined on page 4, lines 9 to 13), for instance a lighting device or electronic lock. The accessed device in turn sends an “evaluation request” to a “central decision evaluation apparatus” (30) which decides, based on one or more “central access control policies”, whether the access request is to be granted or denied. Figure 6 shows a sequence diagram of the information flows in the system. “Policies” are defined as a “set of criteria for the provision of access to resources”; see page 3, lines 30 to 31.

4.5 The central decision evaluation apparatus derives a device-specific access policy from one or more central access control policies and sends this, together with its grant/deny access decision, to the accessed device, the “device-specific access policy” being stored in the accessed device.

4.6 When the accessing device subsequently sends an access request to the accessed device, the latter checks whether the access request matches a stored device-specific access policy and, if so, decides whether to grant or deny the request, based on the stored device-specific access policy without reference to the central decision evaluation apparatus.

4.7 A key difference between the “distributed approach” to access control, shown in figures 1 and 2, and the “centralised approach”, illustrated in figures 3 and 4, is that the latter has a separate central decision evaluation apparatus (30). The “hybrid” approach of the invention, shown in figures 5 and 6, combines the “distributed” and “centralised” approaches (see page 10, line 1, to page 14, line 15) in that it initially uses the “centralised” approach, but then switches to the “distributed approach”.

Fig.5 of WO 2013 128338 A1

  • Claim 1 (Allowed)

  • Claim 7 (Allowed)

  • Claim 9 (Not allowed)

Is it patentable?

The Board discussed then discussed the inventive step of Claim 9:

10.1 Claim 9 of auxiliary request 1 starting from D1

10.1.1 The subject-matter of claim 9 of auxiliary request 1 differs from the disclosure of D1 in further comprising:

a. an access policy deriver arranged to derive from the one or more central access control policies that were used for the evaluation a device specific access policy,

b. wherein the central decision evaluation apparatus is arranged to send the decision and the device specific access policy to the accessed device (20).

10.1.2 In the oral proceedings the respondent argued that sending the decision and the device specific access policy to the accessed device (feature “b”) had the technical effect of enabling the hybrid approach, since the accessed device could only decide itself if it had the device specific access policy. It was moreover not usual to send rules to another system element.

10.1.3 The appellant argued that the features of the central decision evaluation apparatus were not limited by its effect on another system element, namely enabling the accessed device to decide. Moreover the access policy could be based on purely financial rather than technical considerations.

10.1.4 The board finds that sending the decision and the device specific access policy to the accessed device is a necessary but insufficient condition for the presence of a technical effect in the central decision evaluation apparatus, since the criteria in a policy need not be technical. The derivation of a device-specific access policy and the taking of a decision based on it can be non-technical steps which are thus unable to lend inventive step to the claim. For instance, sending the derived policy together with the decision could merely serve the non-technical purpose of informing the accessed device about the reasons for the decision taken.

10.1.5 Hence the subject-matter of claim 9 lacks inventive step in view of D1.

However, the Board considered that claims 1 and 7 were inventive for the following reasons:

10.2.8 The board finds that the subject-matter of claim 1 of auxiliary request 5 differs from the disclosure of D1 in the following features:

a. the method takes place in a building automation and control system;

b1. deriving, at the central decision evaluation apparatus, a device-specific access policy from one or more central access control policies that were used for evaluation;

b2. sending the device-specific access policy from the central decision evaluation apparatus to the accessed device and storing it there and

b3. sending, from the accessing device to the accessed device, a subsequent access request, evaluating, at the accessed device, whether the subsequent access request matches the device-specific access policy stored in the accessed device, if so, deciding, at the accessed device, whether the subsequent access request is granted or denied based on the device-specific access policy.

10.2.9 The board does not accept the objective technical problem proposed by the appellant. From the perspective of D1, this formulation would require the skilled person to start from a known solution in a medical context and, in a way, to look for a problem, namely an automation domain which might profit from that solution. However, a central assumption of the problem-solution approach is that the skilled person starts with a problem and looks for a solution to it. The board also notes that the appellant has not justified the proposed objective technical problem in any other way.

10.2.10 The board finds that in claim 1 features “b1” to “b3”, representing the so-called “hybrid” approach, would not have been obvious to the skilled person starting from D1. More specifically, although the hybrid approach, i.e. delegating the access control decisions to the accessed devices, has a clear advantage in a building automation and control system, which the board accepts (see above, point 6.2.2) must be construed as having a large number of “accessed devices” such as locks or lighting devices, no such advantage is apparent in the system of D1 in which there is only one, central accessed device. Furthermore, the skilled person would also have no reason to try applying the solution of D1 to such a building automation and control system. Inversely, it has not been argued that, and it is not apparent to the board why, a skilled person starting from, and addressing a problem in, a generic building automation and control system would look for a solution in a medical automation system such as that of D1.

10.2.11 Hence the subject-matter of claim 1 involves an inventive step in view of D1. The same applies mutatis mutandis to claim 7.

The Patentee amended claim 9, but they were also considered not inventive:

10.4.3 The board finds that neither auxiliary request 2 nor 3, nor their combination in 4 introduces amendments lending inventive step to claim 9 of auxiliary request 2 or claim 7 of auxiliary requests 3 and 4. In auxiliary requests 2 and 4 the restriction of the device-specific access policy to only the relevant rules valid for the accessed device seems to be a usual matter for the skilled person of conserving memory space and network bandwidth and, given that the policy need not be technical, the additional feature lacks technical character and is thus unable to contribute to inventive step. Turning to auxiliary requests 3 and 4, the derivation of the device-specific access policy using context attributes as variables lacks technical character, since the policy itself need not be based on technical considerations.

10.4.4 Hence the subject-matter of claim 9 of auxiliary request 2 and claim 7 of auxiliary requests 3 and 4 does not involve an inventive step, Article 56 EPC.

Therefore, the Board considered that although claim 9 was not inventive, the subject-matter of claims 1 and 7 was inventive.

More information

You can read the full decision here: T 0588/22 (Access decision evaluation for building automation and control systems/SIGNIFY HOLDING) of May 28, 2025 of the Technical Board of Appeal 3.5.06

 

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Routing payment and other data to different screen zones via a single firmware proxy: Technical

The invention relates to displaying payment information.  The Applicant argued that this was done by using a single proxy firmware, which makes a simpler and more secure implementation. Although the Board disagreed that the effect may not be achieved, it was an alternative implementation, which is not to say that it is an obvious one, as the Board does not see that the skilled person would arrive at the solution. 

Here are the practical takeaways from the decision: T 0055/23 (Displaying payment information/INGENICO) of June 27, 2025 of the Technical Board of Appeal 3.5.01

Key takeaways

Routing payment information and other information to different zones of the screen via a single proxy implemented in firmware is technical.

The invention

The Board defined the invention as follows:

1. The invention in claim 1 of the main request concerns a method for displaying payment information together with other information, for example advertisements (see page 5, lines 1 to 6), on the screen of an electronic payment acceptance device (100). Data from a payment application are routed, by a proxy (121) located in the firmware of the device, to a first zone (111) of the screen (110), while data from other applications (such as an application providing advertisements) are routed by the same proxy to a second zone (112) of the screen (110). As the proxy is located in the firmware, it cannot be bypassed by applications implemented in the application layer (130) of the device.

Claim 1 also specifies that data from the payment application are verified by the proxy before being routed to the first zone of the screen, the verification comprising checking a signature. Thus, the user can be sure that the payment information displayed in the first zone comes from the payment application and not an unauthorised application prompting the user to give away sensitive information.

Fig.2a and 2b of EP 3742373 A1

  • Claim 1 of the Main Request

Is it patentable?

The Examining division alleged that it was obvious over document D5 and interpreted “firmware” as being either a standardised operating environment for the device’s more complex software allowing more hardware-independence, or, for less complex devices, the device’s complete operating system, performing all control, monitoring and data manipulation functions. Thus, the OS of D5 were considered as firmware. However, the Board disagreed and considered as

5. In the Board’s view, the skilled person would understand “firmware” as referring to code that is stored in a non-volatile memory (e.g. ROM or EPROM) of a device and that provides low level control of the device’s hardware. It might well be that, in very simple devices, this code also performs some basic OS functions, but the device in D5 is clearly more complex than that. Thus, in the Board’s view, the skilled person would not understand the operating systems (OS and MC) in D5 as “firmware”.

6. Furthermore, D5 does not disclose sending data from both a secure application and a normal application throughout the same “proxy”. Those applications are rather implemented in different run-time environments (NZ, TZ).

7. Thus, the Board agrees with the appellant that claim 1 differs from D5 by the following features:

a) displaying payment information,

b) a single proxy routing information and verifying the signatures,

c) the localization of this proxy in firmware.

The Applicant argued that the feature provided the technical effect as follows, which the Board did not agree:

9. The appellant argued that features b) and c) together provided the technical effects of a simpler implementation not requiring double run-time environments, and increased security since all data had to go through a check by the firmware proxy.

10. The Board is not convinced of these technical effects. The complexity of the implementation appears rather speculative, and implementing things in firmware has its limitations. At best, this seems to be a trade-off (reduced complexity of the code while accepting the limitations of firmware). Also, the increased security is not necessarily achieved, because all the proxy in claim 1 does is to check whether data comes from the payment application or not, and route the data accordingly. In D5, this is not necessary, as the payment application has its own run-time environment.

However, the Board considered that :

11. Thus, claim 1 rather provides an alternative implementation. That is not to say that it is an obvious one. Starting from D5, the Board does not see that the skilled person would arrive at the solution in claim 1. There is no apparent motivation for the skilled person to do this. While it’s conceivable that the skilled person would generally consider low level solutions involving firmware, he would still have to provide the single “proxy”. This does not appear to be common knowledge. For these reasons, the Board judges that claim 1 involves an inventive step over D5.

Therefore, the Board considered the subject-matter inventive.

More information

You can read the full decision here: T 0055/23 (Displaying payment information/INGENICO) of June 27, 2025 of the Technical Board of Appeal 3.5.01

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Management zones in agricultural fields: Non-technical

The invention relates to improving agricultural field management. This was achieved by running clustering algorithm with different parameters to generate multiple zone layouts and planting plans, from which the user can select. The Board considered that while it may enhance the grower’s flexibility, it has no technical effect as it appears to be driven by administrative or economic considerations. Since neither the claim nor the application specifies how the management zone delineation options and planting plans are used to control the equipment, merely “using” these options and plans for control does not alter their abstract nature. 

Here are the practical takeaways from the decision: T 1717/22 (Management zones in agricultural fields/CLIMATE LLC) of May 16, 2025 of the Technical Board of Appeal 3.5.01

Key takeaways

While a feature may enhance the grower’s flexibility, it has no technical effect. Instead, the provision of multiple options appears to be driven by administrative or economic considerations.

The steps for determining the management zone delineation options and the planting plans define a data processing algorithm. Algorithms contribute to the technical character of an invention only if they serve a technical purpose.

The provision of planting plans is not a technical purpose since these plans may be based on non-technical economic considerations, such as maximising the grower’s profits.

A method serving no technical purpose cannot become technical merely because it processes technical data or is executed on a computer. This is because non-technical, e.g. business or administrative, methods also exploit information about the physical world and can be automated, yet their fundamental nature remains non-technical.

While controlling agricultural equipment is a technical process, merely “using” these options and plans for control does not alter their abstract nature. Hence, the general aim of controlling equipment cannot impart a technical character to the determination of the management zone delineation options and planting plans.

Generating and displaying a graphical representation of the planting plans is not technical as it relates to the presentation of information. It only serves to inform the user about the planting plans, which is a cognitive effect rather than a technical one.

Choosing and customising planting plans are not necessarily technical tasks.

The invention

The Board defined the invention as follows:

1.1 The invention aims at improving agricultural field management through data-driven techniques (see paragraph [0002] of the published application).

The main idea is to divide an agricultural field into contiguous regions with similar characteristics, known as “management zones”, and to provide tailored farming recommendations (“planting plans” in claim 1) for each zone (see, e.g. [0004], [0005]).

1.2 Concretely, the computer-implemented method in claim 1 determines multiple “management zone delineation options” that represent different ways of dividing the field into management zones. Each option is obtained by clustering yield and field characteristic data (e.g. soil and topology characteristics, [0130]) using a “count value” for “a management class count”. The claim does not define the count values or their role in the clustering, but the description vaguely suggests that each count value defines the number of clusters ([0192]).

After determining the management zone delineation options, the method proceeds to provide one or more planting plans for selected options (see Figures 13 and 14 and paragraphs [0240] to [0251] for examples). The management zone options and planting plans are presented to the user and are used to control seeding, irrigation, fertilisation or harvesting equipment.

Fig.14 of WO 2018/093931 A1

  • Claim 1 of the Main Request

Is it patentable?

The Examining division alleged that the non-technical features were implemented into a known system and thus were obvious over D1:

2.3 D1, like the current invention, deals with the determination of management zones for precision farming (see the abstract). The number of management zones is given by the user (column 4, lines 35 to 40), and their determination involves applying a self-organising map on yield and field characteristics data (Figures 5 and 6 and column 4 line 55 to column 5, line 7). The determined zones are displayed and used to create “prescription maps” (column 6, lines 4 to 7 and 14 to 18), which can be used to control farming equipment such as tractors, spreaders or planters for seeding and applying fertilisers and herbicides (column 1, line 62 to column 2, line 2).

The Board considers that using a self-organising map to derive management zones is a form of clustering as it groups related data (see, e.g. column 1, lines 58 to 62, column 2, lines 18 to 21, Figures 5 and 6; and D7). Furthermore, the number of management zones in D1 corresponds to a “count value”, in the language of claim 1, and the prescription maps correspond to the planting plans (see also [0244] of the application).

The distinguishing features were identified as follows:

2.4 Hence, the method in claim 1 differs in that:

i) the management zone determination is carried out multiple times using different “count values” to obtain a plurality of management zone delineation options, one or more of these options are selected, and planting plans are determined for all selected options

ii) a graphical representation of the planting plans is generated and displayed

However, the Board agreed with the Examining Division that it was not technical :

2.6.1 The clustering in claim 1 is defined broadly and is indistinguishable from the clustering in D1. The main distinction is that in claim 1, the clustering process is repeated with different “count values”, each specifying a different number of clusters. This results in multiple sets of management zones (“management zone delineation options”), each with corresponding planting plans.

Feature i) thus merely repeats a known process multiple times for the sole purpose of providing the grower with a number of alternative planting options to choose from. While this may enhance the grower’s flexibility, it has no technical effect. Instead, the provision of multiple options appears to be driven by administrative or economic considerations (see e.g. [0251] and [0252] of the application).

The Applicant argued the following:

2.6.2 The appellant argued that the determination of management zone delineation options and planting plans were technical steps, essentially because they were:

1) based on technical data (yield and field characteristics data)

2) carried out by a computer system

3) used to control agricultural equipment

However, the Board was not convinced:

2.6.3 As set out below, the Board is not convinced.

The steps for determining the management zone delineation options and the planting plans define a data processing algorithm. Algorithms contribute to the technical character of an invention only if they serve a technical purpose (see G 1/19, point 112). However, the Board does not consider the provision of planting plans to be a technical purpose since these plans may be based on non-technical economic considerations, such as maximising the grower’s profits (see [0246] and [0251]). Contrary to the appellant’s view, the technical purpose of improving crop yield cannot be derived from the broad wording of claim 1.

A method serving no technical purpose cannot become technical merely because it processes technical data or is executed on a computer. This is because non-technical, e.g. business or administrative, methods also exploit information about the physical world and can be automated, yet their fundamental nature remains non-technical (see, e.g. T 154/04 – Estimating sales activity/DUNS LICENSING, point 20; T 0677/09 – Smart manual/CONTINENTAL AUTOMOTIVE SYSTEMS, point 8; T 2626/18 – Insurance risk prediction/SWISS RE, points 4.8 and 4.10.).

Furthermore, while controlling agricultural equipment is a technical process, neither the claim nor the application specifies how the management zone delineation options and planting plans are used to control the equipment. Merely “using” these options and plans for control does not alter their abstract nature. Hence, the general aim of controlling equipment cannot impart a technical character to the determination of the management zone delineation options and planting plans (see also page 5, third paragraph of the decision).

2.6.4 The appellant further argued that the management zones were technical quantities of the agricultural field and their determination was a technical process similar to example 4 in section G-VII 5.4.2.4 of the Guidelines for Examination (2022 version). This example relates to a computer-implemented method that controls an infrared camera to capture an image of the temperature distribution on a building’s surface and then calculates the risk of condensation based on the air temperature and relative humidity. The appellant argued that predicting areas of increased risk of condensation was comparable to predicting management zones.

The Board does not consider this example to be relevant because the areas with increased risk of condensation reflect the physical state of the building. In contrast, the management zone delineation options are conceptual subdivisions created for practical management purposes, rather than inherent properties of the agricultural field that reflect its physical state. These zones are based on data-driven analysis and user-defined parameters (e.g. the number of clusters), which may vary depending on the user and their objectives.

The Board then discussed second distinguishing feature:

2.7 Re ii)

2.7.1 The Board is of the opinion that generating and displaying a graphical representation of the planting plans is not technical as it relates to the presentation of information. It only serves to inform the user about the planting plans, which is a cognitive effect rather than a technical one.

2.7.2 The appellant argued that this feature contributed to the technical character of the invention since it credibly assisted the user in performing a technical task by means of a continued and/or guided human-machine interaction process. In particular, it enabled the user to customise or decide on the planting plans.

The Board is not convinced for the simple reason that claim 1 does not specify any use of the displayed information. Moreover, the Board considers that choosing and customising planting plans are not necessarily technical tasks (see also point 2.6.3 above).

Therefore, the Board considered the subject-matter obvious:

2.8 In summary, the Board considers that features i) and ii) are non-technical and do not contribute to the technical character of the invention either individually or in combination. Hence, under the COMVIK approach, these features are incorporated into the objective technical problem as given requirements that the skilled person must implement. The Board finds that the claimed implementation is obvious as it amounts to a straightforward automation.

More information

You can read the full decision here:T 1717/22 (Management zones in agricultural fields/CLIMATE LLC) of May 16, 2025 of the Technical Board of Appeal 3.5.01

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Liveness detection: Technical

The invention relates to liveness detection, which analyses image quality (resolution, ISO, brightness, sharpness), then selects a neural network trained for that specific quality type, and determines a liveness score. The Examination Division considered that it was obvious the skilled person would use the face authentication for liveness detection and train different CNNs for each quality type. The applicant argued that liveness detection and authentication were different. The Board disagreed and considered that a person skilled in liveness detection will naturally also have regard to prior art from the field of authentication. 

However, the Board noted that using the quality parameter as a combination of photographic and attribute parameters for this was not disclosed and remitted the case to the Examining Division for further prosecution

Here are the practical takeaways from the decision: T 1633/22 (Liveness detection/SAMSUNG) of December 10, 2024, of the Technical Board of Appeal 3.5.06

Key takeaways

 If one classifier is specialised for a particular condition, it is implicit, or at least very obvious, that data for that particular condition will be used to train it.

A person skilled is, generally, interested in improving, or finding alternatives to, known liveness detection methods, based on the knowledge that known methods have known pitfalls.

The invention

The Board defined the invention as follows:

1. The application relates to liveness detection in relation to authentication, e.g. when unlocking a phone based on a face image (page 1, lines 9 to 12). Starting from the observation that known methods, such as those based on local binary patterns, may not be effective under some conditions (e.g. low light; see the paragraph bridging pages 1 and 2), the application proposes to categorize the images as a function of their “quality” and to use different liveness detectors for each quality type (see e.g. page 2).

1.1 The liveness detectors are neural networks classifying the target images into “true” and “false” target images. In particular, they may be cascaded neural networks (see the paragraph bridging pages 2 and 3). The quality type of an image may be determined by “photographic” parameters, such as ISO values or resolution, and “attribute” parameters, e.g. contrast or brightness (see e.g. page 6, lines 18 to 20).

Fig.5 and 6 of EP 3 333 768 A1

  • Claim 1 of Sole Request

Is it patentable?

The Examining division alleged that the subject-matter lacked inventive step over document D1 (EP 2639731 A2):

3. Document D1 is concerned with face authentication. It explains that when users try to authenticate themselves in conditions different to the ones where the registration took place, the accuracy may suffer (paragraph 8). To address this problem, D1 proposes the use of different classifiers for different condi­tions. Conditions include face orientation, accessories worn by user (e.g. glasses), but also illumination conditions and “image quality” (paragraphs 20 and 21). A condition-deriving unit detects the current condi­tions (paragraph 71) and a corresponding classifier is selected for authentication. The classifiers may be, inter alia, neural networks (paragraph 79).

The Examining Division considered that claim 1 of that request differed from D1 only by its use, i.e. (face) liveness detection instead of face authentication. The Applicant argued that the claim includes new features which were not disclosed:

7.1 In particular, the newly added definition was not dis­closed in D1. The quality parameter claimed comprised at least two different types of values, attribute and photographic. D1 discussed conditions related to the content of the image, for instance lighting, pose etc., which constitute “attribute” parameters in the terms of the present application, but nothing related to the photographic parameters, i.e. parameters related to the photo camera.

7.2 Furthermore, D1 did not disclose a combination of two types of parameters to define a condition used to select a classifier.

8. The Board agrees that this new feature is not disclosed in D1, because D1 does not disclose the use of photographic (i.e. camera-related) parameters, nor does it disclose a condition for classifier selection based on a combination of parameters.

However, the Board disagreed that the classifier was novel :

10. The Board does not agree. Irrespective of whether the term “classifier” used in D1 is an accurate translation of the Japanese original or whether any of the terms “matcher”, “identifier” or “discriminator” is a more appropriate one, the function of what is called a “classifier” in D1 is to produce a binary output, i.e. a label true or false, to indicate whether a particular user is authenticated or not. This makes it a classifier in the sense of the claim.

10.1 Moreover, the passage cited by the Examining Division, namely paragraph 79, clearly states that these classifiers may be neural networks, which are the claimed classifiers.

And reiterated that the training was also implicit:

12.4 Regarding training, the Board considers that if one classifier is specialized for a particular condition, it is implicit, or at least very obvious, that data for that particular condition will be used to train it.

13. Therefore, the Board sees only two differences between claim 1 and D1 which might support the presence of an inventive step, namely that the claimed method is used for liveness detection and that it considers also quality parameters other than those disclosed for the “specialized classifiers” of D1.

The Board then discussed whether it was inventive:

14. Concerning the first difference, the Examining Division considered that the person skilled in the art would apply the method of D1 to (face) liveness detection, (decision, reasons 11.1). It stated in particular: “the skilled person would do the same for live[]ness detection and train different CNNs for each quality type”.

15. The Appellant argued in the statement of grounds of appeal (from the bottom of page 3) that there was no incentive in D1 for the skilled person to modify the system “to perform liveness detection using the same specific method disclosed for authentication”.

15.1 In the Appellant’s view, liveness detection and authentication were distinct tasks, so that when the skilled person were to “[start] from D1 and [look] to implement liveness detection, the straightforward solution” would be to combine just “some type of liveness detection” with the authentication disclosed in D1 “rather than to perform both assessments using the same system”. In favour of this argument, the Appellant pointed out that the method of D1 “has authentication-specific advantages discussed in paragraph [0008]”.

The Board noted its technical effect, but considered it was obvious:

26. In the present case, the Board assumes a person skilled in liveness detection methods. The Board considers that such a person is, generally, interested in improving, or finding alternatives to, known liveness detection methods, based on the knowledge that known methods have known pitfalls (as the current application also states; see point 1 above).

26.1 Liveness detection for authentication and authentica­tion are closely related technical areas; the Appellant did not contest this. Therefore, a person skilled in liveness detection will naturally also have regard to prior art from the field of authentication for develop­ments relevant to liveness detection. This includes D1.

..

28. Thus, in the Board’s judgement, the person skilled in the art in liveness detection would have regard to D1 and would have reason to adapt its solution to liveness detection in a way leading to the invention according to claim 1 of the main request before the Examining Division.

However, the Board identified further features in the new request which may still contribute to inventive step:

29. The current request differs from that request by defining the quality parameter as a combination of photographic and attribute parameters.

30. However, the Board specifically considered a person skilled in the art of liveness detection. There may be reasons related to this specific field to also consider photographic parameters.

30.1 The Board notes that during examination a relatively large number of documents were cited, some of them concerned with liveness detection, but were not discussed in the decision. A positive decision on inventive step cannot be issued before at least these documents have been discussed.

Therefore, the Board remitted the case to the Examining Division for further prosecution.

More information

You can read the full decision here: T 1633/22 (Liveness detection/SAMSUNG) of December 10, 2024, of the Technical Board of Appeal 3.5.06

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Presenting an attractive game to a player: non-technical

The decision concerns operation of an electronic gaming system, particularly providing different visualisation to maintain engaging game play.  The applicant argued that the invention did not implementing game rules for psychological impact. Instead, it provided a structured method for optimising data flow, reducing system load, and improving the scalability of the gaming system.

The Board disagreed and noted that psychological effects cannot be considered as solutions to any technical problem. Instead, they are related to the aim of presenting an attractive game to a player. Thus, any supposed effects such as “reduction of the time needed to be spent to proceed with operation”, “reduced bandwidth”, “lossy communication protocol”, “reduction in time-lag” would have to be considered as being merely secondary effects resulting from the implementation of a gaming scheme and the direct technical consequences of such an implementation by generally known technical means in a straightforward manner. Thus, it was considered not inventive.

Here are the practical takeaways from the decision: T 1919/22 of March 13, 2025, of the Technical Board of Appeal 3.4.03

Key takeaways

Psychological effects cannot be considered as solutions to any technical problem. Instead, they are related to the aim of presenting an attractive game to a player.

The application only discloses psychological effects as their aim. Thus, any supposed effects such as “reduction of the time needed to be spent to proceed with operation”, “reduced bandwidth”, “lossy communication protocol”, “reduction in time-lag” would have to be considered as being merely secondary effects resulting from the implementation of a gaming scheme and the direct technical consequences of such an implementation by generally known technical means in a straightforward manner.

The invention

The Board defined the invention as follows:

1. The invention relates to a method of operating an electronic gaming system configured for playing a game of chance.

According to the application, page 1, lines 9 to 13 a common trend within the online gaming industry is to provide potentially new and current players with promotional offers for attracting players to the newly introduced games. For example, the players will receive a predetermined number of free turns for playing the games, a concept sometimes denoted as “free spins” for example in relation to a simulated multi-reel slots game. This concept is reflected in features (a1) to (d2) of claim 1 of the main request.

For reducing the potential tediousness in case of a high number of predetermined numbers of favorable outcomes and a low probability of favorable outcome per turn of the game (i.e. resulting in a large plurality of turns before the redemption mode offering the free turns has been completed), the number of turns that in fact are visualized for the player is reduced, see the application, page 2, lines 28 to 32.

As claimed, use of an “adjustable threshold” according to features (f1) and (f2) and of two visualization modes according to features (g1) to (g3) is made.

Fig.1 of EP 3 164 854 A1

  • Claim 1 of Main Request (labelling added by the board)

Is it patentable?

The Examining division and the applicant agreed that the following features were not disclosed:

(e1) – performing, using the server, a large plurality of turns of the game in the background before the step of visualizing any turns to the player within the GUI of the client device,

(f1) – introducing an adjustable threshold to the electronic game system, and

(f2) – determining, using the server, for each of the large plurality of turns if a specific outcome of the large plurality of turns should be defined as favorable or non-favorable by comparing outcomes of each of the large plurality of turns with the adjustable threshold,

wherein:

(g1) – the step of visualizing the plurality of turns is divided into an initial visualization mode and a thereafter following later visualization mode determined by the control unit,

(g2) – the later visualization mode further comprises the step of selecting, using the server, only favorable outcomes of the turns to be visualized within the GUI of the client device, and

(g3) – the later visualization mode being activated by the control unit based on a function of a duration of playing the game.

The Applicant argued that the features had the following effect:

2.2.1 The appellant argued that the invention provided advantages in the field of operating electronic gaming systems, such as for computer systems used in relation to online gaming where a large plurality of electronic client devices each are arranged in network communication with a “centrally” arranged computer server.

2.2.2 It had generally been suggested to promote a specific online game to players operating electronic client devices by allowing the players to experience the success of multiple winnings of the specific online game, without having to provide a payment for such an experience. This was implemented by providing a player with an “offer”.

In case of an “offer” to take part in an enhanced gaming experience, the server executing all of the N turns of the game (with N being the selected number of winnings divided by the selected probability of favorable outcome per turn of the specific game) would continuously, and for each of the N turns of the game, have to communicate information to each of the electronic client devices, thus placing a severe strain on both the server and the network connecting the server and the multiple electronic client devices.

2.2.3 The inventors had solved this problem by implementing a “compression method” to be used by the server, purposely adapted to reduce the amount of data that needed to be transmitted from the server to the multiple electronic client devices. This compression method was implemented firstly by executing the N games at the server, then secondly by arranging the results from the N games into two “bins”, where favorable outcomes were placed in one bin and non-favorable outcomes in another bin (based on the adjustable threshold) and then thirdly by communicating only data relating to the results in the bin comprising the favorable outcomes to the multiple electronic client devices for visualization at respective graphical user interfaces of the multiple electronic client devices.

The threshold according to features (f1) and (f2) would be a “clear definition” of how to “bin” the turns of the game that were performed by the server in the first step.

2.2.4 The claimed method had several technical advantages. Executing turns in the background reduced real-time computational constraints on the server. Dynamically applying an adjustable threshold allowed to control data filtering in response to game conditions. Selectively transmitting results reduced the amount of data to be transmitted between the server and the multiple electronic client devices, thereby reducing the computational constraints on the network and the bandwidth used. Such a reduction was actually observed in existing technical implementations of claim 1.

Moreover, the player needed to spend less time by not having to observe visualized turns of the game that resulted in non-favorable outcomes.

By reducing both computational load and data transmission requirements per player session, the claimed method also enhanced the scalability of the gaming system.

2.2.5 The appellant accepted that a reduction of the amount of data transferred between the server and the client devices due to the data filtering was not explicitly disclosed in the application. However, the skilled person would understand from page 8, lines 6 to 15 that only data which was to be visualized on a player’s client device would be transmitted from the server, the remaining data only being stored in the database of the server. This was the only sensible interpretation of a skilled person reading the application with a mind willing to understand.

2.2.6 The present invention therefore did not simply implement game rules for psychological impact. Instead, it provided a structured method for optimizing data flow, reducing system load, and improving scalability of the gaming system, making it a technical solution to a clearly defined technical problem.

However, the Board disagreed with the Applicant:

2.3.1 The application as a whole is silent about any reduc­tion of the amount of data transferred between the server and a client device, a “unique compression method” or a “statistical mathematical algorithm looped for several times”.

According to the application as originally filed, in a situation when a player requests to redeem an offer corresponding to an opportunity of receiving a predetermined number of favorable outcomes when playing the game without further payment (“free wins”, see e.g. page 8, lines 1 to 5), the aim of not visualizing a number of (unfavorable) outcomes is to improve the attraction of the game, see page 1, lines 20 to 23, page 2, lines 11 to 20, “improve the attraction”, “to experience all aspects of the game, including experiencing the success of winning the game”, “the offerings will have an in comparison lower threshold of acceptance, as a sure win is the result of such an acceptance”, page 2, lines 28 to 34, “reducing the potential tediousness”, page 3, lines 13, “advantageous psychological effect”, “heighten the experience of the game”, “remembered in an overall positive manner”, page 8, line 29 to 34, “In case all (or at least a few) wins results in a payment being below the predetermined threshold, the server 102 may select to dynamically lower threshold such that a suitable number of wins are visualized to the player to keep the positive psychological effect to presenting wins to the player.”, page 9, lines 18 to 26.

These psychological effects cannot be considered as solutions to any technical problem. Instead, they are related to the aim of presenting an attractive game to a player.

2.3.2 The skilled person would not derive from the application that the distinguishing features necessarily result in a reduction of data transfer between the server and the client devices.

The passage indicated by the appellant, page 8, lines 6 to 15 merely states that the turns of the games are stored in the database of the server and that the server selects the ones to be visualized within the GUI of the client device. The passage does not define the amount of data transferred. In the board’s view it is not excluded that data related to all turn of the game are transferred to the client device.

Page 3, lines 14 to 21 or page 8, lines 18 to 34 describe the use of an adjustable threshold for determining if a specific outcome is to be be considered as favorable or non-favorable, and as such to be visualized for the player or not. In other words, a turn or outcome of the game is visualized on the basis of said threshold. The passage does not provide any indications of how much data is transferred.

The application as a whole does not provide any technical details on how the “adjustable threshold” is used to define whether the outcome of a given turn is favourable or not, see page 3, lines 14 to 21 or page 8, lines 18 to 25. As an aside, the board notes that claim 1 does not include any step of visualizing only the favorable outcomes determined using the threshold. The threshold and its use in steps (f1) and (f2) are thus not more than rules specified by the creator of the game.

Step (e1) also does not necessarily imply any reduction of data transfer, because it only refers to performing turns.

Page 3, lines 1 to 7 disclose the use of an initial and later visualization mode. In the initial visualization mode, all turns of the games are visualized to the player, while in the later visualization mode, only a few turns are visualized. Hence, at least in the initial visualization mode, the data for all favorable and non-favorable outcomes are transferred to the client device. The application is completely silent about any reduction of data transfer when entering the later visualization mode. The application does not exclude that in the later visualization mode data for all favorable and non-favorable outcomes is transferred while only the number of outcomes visualized is smaller.

Steps (g1) to (g3) merely imply that during games of a given duration, a later visualization mode is activated wherein only favorable outcomes of the turns are selected to be visualized. Strictly speaking, the wording of steps (g1) to (g3) does not imply any reduction of data transfer, but merely that less information is presented to the player. Said features represent not more than rules specified by the creator of the game to render the game attractive.

2.3.3 Therefore, the board disagrees with the appellant that the invention is an operational protocol for a gaming environment, which ensures that time is saved in the system and less communication bandwidth for the network is used, which allows the scalability of the gaming system or which reduces computational load and data transmission.

Instead, the board concurs with the examining division that the distinguishing features of claim 1 are non-technical and relate to the playing of a game involving several rules. That is, they only define an aim to be achieved in the non-technical field of gaming.

2.3.4 Even if it were assumed that the distinguishing features resulted in a reduced data transfer between the server and the client devices, they could not be considered to be based on technical considerations. As set out above, the application only discloses psychological effects as their aim. Thus, in line with what was pointed out by the examining division, any supposed effects such as “reduction of the time needed to be spent to proceed with operation”, “reduced bandwidth”, “lossy communication protocol”, “reduction in time-lag” would have to be considered as being merely secondary effects resulting from the implementation of a gaming scheme and the direct technical consequences of such an implementation by generally known technical means in a straightforward manner.

In other words, the distinguishing features would only define an aim to be achieved in a non-technical field even if they resulted in a reduced data transfer between the server and the client devices.

This was different in cases T 650/13 and T 107/87, as the competent boards held that the claimed features indeed contributed to a technical solution. In T 650/13, the claimed algorithm features of the independent claims were found by the competent board to be regarded as redundancy-reducing coding rules explicitly used in a process for transmitting compressed data. In decision T 107/87, the competent board held that a data coding rule for identifying and eliminating statistical redundancy contributed to the solution of a technical problem where it was used to reduce the amount of data to be stored or transmitted.

2.3.5 According to the relevant case law, when aspects of the claim only define an aim to be achieved in a non-technical field (in particular, in the gaming or business field) and thus do not contribute to the technical character of the invention, this aim may legitimately appear in the formulation of the objective technical problem in the form of a requirements specification provided to the person skilled in a technical field (e.g. a computer specialist) as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met.

It would be straightforward to implement the rules of playing a game defined in the distinguishing features on the server/client network of D1.

Therefore, the Board considered the invention not to provide any technical contribution and could not be considered to involve an inventive step in the sense of Article 56 EPC.

More information

You can read the full decision here: T 1919/22 of March 13, 2025, of the Technical Board of Appeal 3.4.03

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Cell analysis: non-technical

The decision concerns an examination appeal related to cell analysis, particularly by analysing the images of cells to detect characteristic quantities associated with the elements of the cell.  The Examining Division considered the application was not sufficiently disclosed as the claims covered the computation of a “practically unlimited” number of characteristic quantities, and the technical purpose of the model and the interpretation of the relationships were lacking.

The Board agreed with the applicant that the invention provided a “research tool, ” and implementing this caused no difficulty for the skilled person. However, even if the features of characteristic quantities from an image correspond to the measurement of physical quantities, their extraction itself was known, and the only contribution was the creation of the graphical model. Therefore, since the claims did not provide indirect measurements in the sense of G 1/19 and do not state or imply any technical use, they do not provide any technical contribution and cannot be considered to involve an inventive step in the sense of Article 56 EPC.

Here are the practical takeaways from the decision: T 0660/22 (Cell analysis/NIKON) of January 20, 2025  of the Technical Board of Appeal 3.05.06

Key takeaways

If the construction of this model was merely a way of manipulating data with no associated technical effect, the correlation data may or may not be useful, in the sense of representing real interactions or dependencies between elements in the cell. Data produced by these calculations meant to gain scientific knowledge about a natural system, is insufficient to establish a technical effect according to G 1/19.

Whether or not a method is to be considered an (indirect) measurement method does not depend on the number of calculations involved. A method of measurement is of a technical nature regardless of what use is made of its results and hence also where the results are used for a non-technical purpose.

Not all methods of obtaining information about physical reality are measurements within the meaning of G 1/19. Any measurement method within that meaning, whether indirect or not, or corresponding device, must be intended to determine a specific and predefined physical quantity.

Correlations between physical quantities contain information which a scientist can use to investigate, and possibly establish, the relationships between physical quantities. But unless such a factual relation­ship is actually established, these values are “just data, which may be used, for example, to gain scientific knowledge” and obtaining them is not a measurement within the meaning of G 1/19.

 

The invention

The Board defined the invention as follows:

1. The application relates to cell analysis. It aims at identifying relationships between “elements configuring mechanisms that control vital phenomena in the cell” (paragraphs 1 to 7). The vital phenomena include, for instance a protein signalling cascade (see paragraph 15), and elements may be cell elements such as the nuclei, but also artificially added elements such as an inhibitor (see paragraphs 20 and 22).

2. For this purpose (see figure 3) images of cells are taken, the images are analysed to detect and segment the cells and their elements, and “characteristic quantities” (see e.g. paragraphs 73, 75, 77, 79, 82, 84 etc.) associated with the elements are extracted. Time series of such quantities are formed (paragraph 100) and correlated with one another (paragraphs 101 to 124). The elements and their correlation strengths are visualised as a graphical model, in which the elements form the nodes and each pair of elements is linked by a line with a thickness representing the correlation strength (paragraphs 125 and 126 and figures 23 to 25).

Fig.1 of EP 3 239 287 A1

  • Claim 1 of Main Request

Is it patentable?

The Examining division considered the application was not disclosed:

4. It stated that the claims covered the computation of a “practically unlimited” number of characteristic quantities and corresponding first and second correlations (decision, point 13). It also stated that it was not possible to derive, be it from the claims or from the description, which mechanisms were sought and which vital phenomena needed to be observed. The technical purpose of the model and the interpretation of the relationships were lacking (decision, point 15).

5.1 The Examining Division dismissed the Appellant’s argument that the invention was a generic analysis tool capable of analysing images and relationships between elements which should be compared with – and treated like – an oscilloscope, stating: “The oscilloscope as such is a technical apparatus with a well-defined technical purpose and the choice of the quantities measured depends on the task at hand. In the present case, there is no technical purpose or an associated technical effect because the specific computations and the creation of the model illustrating relationships between predetermined elements of the cell is merely a way of manipulating data. The outcome, in the form of an interpretation of the vital phenomena relating to cells, as broadly stated in the description of the application, is left at the latitude of the user (in this case a biologist)” (decision, point 25).

The Board partly agreed with the Application that the invention was sufficiently defined, but noted that it did not include an inventive step:

6. In its preliminary opinion, the Board agreed with the Appellant that the invention, on the basis of the claims and of the description, was understood by the skilled person as providing only a “research tool”, which did not relate to the investigation of a certain, particular, mechanism or phenomenon. Rather, the description and the claims emphasised the definition of a generic (graph) model based on correlations between time-series of observations. This model was presumably meant to help a researcher in their investigation of any given mechanism or phenomenon.

7. Implementing this research tool caused no difficulty for the skilled person, as the Examining Division also acknowledged. Accordingly, the invention could in fact be carried out by the skilled person as required by Article 83 EPC.

8. The extraction of several of the claimed characteristic quantities from an image might correspond to the measurement of physical quantities, but the extraction itself was assumed to be known. The alleged contribution was the creation of the graphical model.

8.1 In this respect, the Examining Division appeared to be correct in stating that the construction of this model was merely a way of manipulating data with no associated technical effect. The correlation data may or may not be useful, in the sense of representing real interactions or dependencies between elements in the cell. The Board also noted that the data produced by these calculations were, at best, meant to gain scientific knowledge about a natural system, which was insufficient to establish a technical effect according to G 1/19 (see reasons 98).

8.2 The Board noted that a case could be made that the correlation strengths, and the corresponding models, were a form of indirect measurement, and thereby inherently of technical nature (G 1/19, reasons 99). The Board understood the Appellant to have advanced the analogy with an oscilloscope or spectroscope in an attempt to support this view. However, neither the correlation strengths nor the corresponding models appeared to correspond to any specific physical property, so that, already for that reason, their derivation could not be considered as an (indirect) measurement.

However, the Board disagreed with the Applicant that it was inventive:

12. The Board agrees with some of the Appellant’s general arguments. Specifically, the Board agrees that whether or not a method is to be considered an (indirect) measurement method does not depend on the number of calculations involved, and that a method of measurement is of a technical nature regardless of what use is made of its results (G 1/19, reasons 99) and hence also where the results are used for a non-technical purpose.

The Board also agrees that the strength of the correlation between physical quantities, even a very small or zero correlation, provides information about physical reality.

13. However, the Board disagrees that all methods of obtaining information about physical reality are measurements within the meaning of G 1/19 (reasons 99).

13.1 The Board considers that any measurement method within that meaning, whether indirect or not, or corresponding device, must be intended to determine a specific and predefined physical quantity. A method of measurement may be called “indirect” if it determines the physical quantity of interest on the basis of the measurement of one or more different physical quantities and a known factual relationship between these quantities.

13.2 Methods comprising the measurement of physical quantities followed by calculations to derive values of interest from the measured values are therefore not indirect measurement methods, unless the calculations correspond to a known factual relationship between the quantities involved and are used to determine the physical quantity of interest.

13.3 For instance, the calculation of a value which does not represent information about physical reality at all, e.g. the price of a refreshment which rises with the measured temperature, is not part of a measurement method. But even if the calculated value provides information about physical reality, for instance a correlation value between physical quantities, that value itself may or may not correspond to a physical quantity. For illustration, a correlation between substance concentration inside and outside a cell may represent the membrane permeability to that substance, so that correlation value would qualify as a physical quantity. But other correlation values may not correspond to any physical quantity (e.g. the correlation between the shape of a desk and the lighting in a room, as was discussed with the Appellant during the oral proceedings), or that correspondence may not, or not yet, be known.

13.4 Correlations between physical quantities contain information which a scientist can use to investigate, and possibly establish, the relationships between physical quantities. But unless such a factual relation­ship is actually established, these values are “just data, which may be used, for example, to gain scientific knowledge” (G 1/19, reasons 98) and obtaining them is not a measurement within the meaning of G 1/19, reasons 99.

14. It is neither self-evident nor explained in the application that each of the many individual “characteristic quantities” disclosed (see the references in paragraph 2 above) actually represents a physical quantity of the cell. But at any rate this is not established for the claimed characteristic quantities as they remain entirely undefined.

14.1 Even if it were accepted that these characteristic quantities did represent physical quantities and that extracting them from an image constituted a form of measurement, the correlation values are not set out as measurements of any specific and predefined physical phenomenon relating two quantities (e.g. a permeability coefficient). The fact that they convey information reflecting physical reality is not sufficient for them to be qualified as indirect measurements (see point 13 above).

14.2 The same holds for the obtained model, which may or may not represent biochemical pathways and signalling mechanisms.

14.3 The model might assist a scientist in determining actual cell properties, but the claimed device (or method) alone does not achieve this.

15. The Board therefore arrives at the conclusion that neither the device according to claim 1 nor the method according to claim 12 provides indirect measurements in the sense of G 1/19, reasons 99. Also, the claims do not state or imply any technical use. The claimed invention thus does not provide any technical contribution and hence cannot be considered to involve an inventive step in the sense of Article 56 EPC.

Therefore, the Board considered the invention to not provide any technical contribution and could not be considered to involve an inventive step in the sense of Article 56 EPC.

More information

You can read the full decision here: T 0660/22 (Cell analysis/NIKON) of January 20, 2025, of the Technical Board of Appeal 3.05.06

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Eye-tracking to automatically detecting user interactions: technical

The decision concerns an examination appeal related to eye-tracking, particularly generating a profile reflecting a user’s eye movements while reading an electronic book. The Examining Division argued that combining an e-reader with eye-tracking was an obvious use of a notoriously well-known technology and merely an implementation of a business requirement. The applicant maintained that the invention solves a technical problem by automatically detecting user interactions through eye-tracking.

While the Board agreed that features unrelated to eye-tracking were an obvious implementation of a business requirement, it found that eye-tracking features are technical, as they involve automatically detecting user interactions. It also noted that combining a computer or mobile device with an eye-tracker was not notoriously known. The Board considered the Examining Division’s argument— that the skilled person would recognize the role of the eye in reading and decide to implement automatic detection—to involve hindsight. In the absence of relevant prior art, the case was remitted for further search and assessment of inventive step.

Here are the practical takeaways from the decision: T 0725/21 (Eye-tracking/MICROSOFT TECHNOLOGY LICENSING) of February 27, 2025 of the Technical Board of Appeal 3.05.01

Key takeaways

 Business requirement dictates that upon determining that the user starts reading a book, this book’s characteristics should be recorded in their profile. This is an obvious implementation of a business requirement given to the skilled person to implement for non-technical reasons.

It is common ground that the features that concern eye-tracking have a technical character, as these features are not part or a direct implementation of the underlying non-technical scheme, but solve the technical problem of automatically detecting user interactions.

A combination of a computer or mobile device with an eye-tracker was not notoriously known. In the absence of any pointer in the prior art, the examining division’s argument that the skilled person would have recognised the crucial role of the eye in book reading and then decided to automatically detect the user’s eye movements is considered to involve hind-sight

The invention

The Board defined the invention as follows:

1.1 The invention concerns a method for generating a profile reflecting the user’s eye movements when they are reading an electronic book, see paragraphs [23] and [47] of the original application.

1.2 In more detail, once the user has opened a book in an e-reader application running on their computer device ([23]), the method determines the book’s characteristics, such as its genre (not claimed), and stores them in the user profile that the computer device holds, see [43]. Although not claimed, the user profile is shared with a recommendation system and used for making purchase recommendations, see [24] and [38].

1.3 The key aspect and focus of the discussion in this appeal are the features stating that, when the user is reading the displayed book, the method tracks information related to their eye movements and records it in the user’s profile.

Fig.1 of WO 2014/201064

 

  • Claim 1 of Main Request

Is it patentable?

The Examining division considered the features were well known:

2.1 The examining division considered that the starting point for inventive step (Article 56 EPC) was a web-enabled personal computer or mobile device that ran a web browser corresponding to the e-reader application in claim 1. Such devices were notoriously known at the priority date, and their existence did not need to be proved by written evidence, see decision, points 14 (last paragraph) and 15.

2.2 The examining division further found that, since the application lacked technical detail on how eye-tracking was implemented, these features had to be considered either insufficiently disclosed (Article 83 EPC) or obvious (Article 56 EPC). Specifically, at point 16 of the decision, they argued: “Therefore, for the sake of sufficiency of disclosure (Article 83 EPC), the principles described must be understood as well-known for the person skilled in the art (Article 56 EPC) for purposes known. He merely reutilises this well-known functionality”.

The Board partly agreed with the Division that the  a web-enabled reading device was well known, and the features which were not concerning eye-tracking related to business requirement:

2.3 The Board agrees with the examining division’s interpretation of the device as a web-enabled personal computer or mobile device, especially considering that paragraph [23] of the published application says the e-reader might be an application running on a personal computer. The Board also agrees that such web-enabled devices were notoriously known at the priority date.

Furthermore, the Board agrees with the examining division’s assessment of the claim features that do not concern eye-tracking. More specifically, the Board concurs that, using the COMVIK approach (T 641/00 – Two identities/COMVIK), these features are an obvious implementation of a business requirement given to the skilled person to implement for non-technical reasons. Although not clearly stated in the decision, this business requirement dictates that upon determining that the user starts reading a book, this book’s characteristics should be recorded in their profile, see decision, points 14 and 17 to 19.

However, the Board disagreed with the Division, and sided with the argument of the appellant on the features concerning eye-tracking:

2.4 The crucial features in this appeal, on which the appellant’s arguments focus, are those concerning eye-tracking. It is common ground that these features have technical character, see decision, points 25 and 34.

2.5 Concerning sufficiency of disclosure, the Board agrees with the appellant that the requirements of Article 83 EPC are met.

It is true that the application provides little technical detail on eye-tracking and relies in this regard on the skilled person’s common general knowledge, see point 1.3 above.

The Board considers however that the skilled person to whom the disclosure on eye-tracking is aimed (see Case Law of the Boards of Appeal, 10th edition, II.C.4.1) is a human-computer interaction expert with experience in hardware integration and sensor interfacing. Given the common ground that eye-tracking sensors were known in general, the skilled person would have been aware of their existence and capable of selecting a suitable one to connect to a computer device running the e-reader application to detect the user’s eye movements. Furthermore, in order to store the detected information in the user’s profile, the skilled person would have known how to provide the information in a format suitable for computer storage.

2.6 Turning to inventive step, the examining division argued that the combination of a computer or mobile device with an eye-tracker was obvious and would have involved merely reusing the well-known functionality, see point 2.2 above. At point 25 of the decision, they added that: “Indeed, as the applicants rightfully argue, the eye movement sensor may not be given to the person skilled in the art, because this is part of the solution. However, the person skilled in the art is confronted with the question: How to capture how a user interacts with the content? This does not refer to any technical solution, but the person skilled in the art would realise, especially in the context of reading electronic books, that the eye is an important attribute in this process. He would therefore have chosen to also capture this type of activity, and would have used the very well-known eye movement sensor as an “of-the-shelf” solution without having to exercise any inventive skills”. The examining division did not provide any documentary evidence concerning eye-tracking.

2.7 The Board agrees with the appellant (see section VIII) that the claimed combination of a computer or mobile device with an eye-tracker was not notoriously known. Moreover, these features are not part or a direct implementation of the underlying non-technical scheme, but solve the technical problem of automatically detecting user interactions.

2.8 Accordingly, claim 1 includes technical features which, in combination, were neither notoriously known nor acknowledged as part of the common general knowledge. Inventive step should therefore be assessed on the basis of pertinent prior art after performing a search, see T 1515/07 – Cost estimate/SAP, reasons, point 6.

2.9 In the absence of any pointer in the prior art, the examining division’s argument that the skilled person would have recognised the crucial role of the eye in book reading and then decided to automatically detect the user’s eye movements is considered to involve hind-sight. Generally, such speculative reasoning, not based on verifiable facts, cannot replace a proper assessment of pertinent prior art.

Therefore, in view of the above, the Board judges that performing an additional search is necessary to assess inventive step, and remitted the case back to examination.

More information

You can read the full decision here: T 0725/21 (Eye-tracking/MICROSOFT TECHNOLOGY LICENSING) of February 27, 2025 of the Technical Board of Appeal 3.05.01

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Adaptive driving models: non-technical

The decision is based on an examination appeal and relates to an adaptive deep learning models calibrated and personalized for (“users” of) autonomous vehicles. The Applicant argued that continuous learning of a deep learning model and it allowed for efficient fine-tuning through fast re-training with minimal data.

The Board disagreed as continuous learning aspect is not part of the claimed invention, and person skilled in the art implements a method for providing a deep learning model to an autonomous vehicle which uses a static library of deep learning models for different vehicles, from which a managing device selects a model corresponding to the vehicle in question. Thus, the application was refused. 

Here are the practical takeaways from the decision: T 2412/22 (Adaptive driving models/STRADVISION) of November 24, 2024, of the Technical Board of Appeal 3.05.06

Key takeaways

The question is not what the prior art discloses, but how the person skilled in the art would modify it, e.g. in order to improve it”.

In general, the person skilled in the art would consider well-known alternatives, this applies to adapting the model on a central device and sending the updated model to the vehicle

The number of differences over a certain piece of prior art is neither decisive nor a reliable indicator for the presence of an inventive step. First, the number of differences itself may be, and often is, deceiving. One modification may imply or make obvious several other differences. Secondly, whether several modifications combine to provide an inventive overall contribution does not depend on their number. For instance they may be obvious solutions to independent, “partial problems”.

The invention

The Board defined the invention as follows:

1. The application relates to the provision of adaptive deep learning models calibrated and personalized for (“users” of) autonomous vehicles.

1.1 According to the application, known autonomous vehicles use “legacy” deep learning models trained by using data collected per country or region, and this is not satisfactory for drivers with different “tendencies”, which the board understands to refer to driving behaviours. The application therefore proposes that the learning models be customized (see page 1).

1.2 In order to do this, the system maintains a collection of legacy models. For any individual vehicle, a suitable legacy model is selected for fine tuning. The legacy model is selected to have been trained for “video” conditions (i.e. vehicle type, place, time, or driver) similar to those applying to the vehicle of interest. The tuning is realised by further training the legacy models with data collected from the vehicle of the specific user (see page 2). This data is labelled by a combination of automatic and manual labelling.

 

  • Claim 1 of Main Request

Is it patentable?

The Applicant and the Board agreed that the differences were as follows:

3. In its communication the Board identified the following set of differences between claim 1 and D1:

(a) the fine tuning taking place on a server (“managing device”) rather than on the vehicle, and the subsequent transmission of the customised model to the vehicle

(b) the existence of a library of legacy models for specific vehicles

(c) the selection of one model for updating based on a relationship score determined using video data information

(d) a certain data labelling scheme, as recited in the penultimate claim paragraph.

And the Applicant argued that features a to c were technical and inventive for the following reasons:

6.1 The invention related to continuous learning of a deep learning model for a specific autonomous vehicle. The model was retrained with specific video data for specific circumstances and stored in a library containing the various models. The storage of models retrained for various circumstances allowed for efficient fine-tuning through fast re-training with minimal data. The selection step based on video data information ensured that the proper model was selected and updated.

…

6.2.2 The skilled person also had no reason to perform the model adaptation on a server. There was enough computing power on a vehicle to perform re-training, and the need to communicate with a server might compromise real-time adaptation. In fact, the real-time requirement of D1 taught away from a centralized solution. Sending video data, waiting for computation and receiving the adapted model caused time delays which did not allow real-time adaptation.

But the Board disagreed:

7. The Board remarks first that the Appellant’s conceptual presentation of the invention (see 6 and 6.1 above) does not entirely correspond to the claimed invention, which is less detailed and therefore of broader scope.

7.1 In particular, the continuous learning aspect is not part of the claimed invention. The library is not defined to be dynamic in content, because the claim does not specify a storage of the updated model in the library.

…

7.3 The claim therefore covers a method for providing a deep learning model to an autonomous vehicle based on a static library of deep learning models for different vehicles, from which a managing device selects a model corresponding to the vehicle in question, retrains it using the vehicle video data, and transmits it to the vehicle.

The Applicant argued that library model were not needed in D1, but the Board again disagreed:

9. Thereby the person skilled in the art implements a method for providing a deep learning model to an autonomous vehicle which uses a static library of deep learning models for different vehicles, from which a managing device selects a model corresponding to the vehicle in question.

The Board addressed why the features were obvious:

10.1 However, for inventive step, the question is not what D1 discloses, but how the person skilled in the art would modify it, e.g. in order to improve it.

10.2 In general, the person skilled in the art would consider well-known alternatives. In the case in hand, this applies to adapting the model on a central device and sending the updated model to the vehicle. There are, in the Board’s view, good reasons for doing this, in particular the fact that more computational resources may be – and generally are – available on the server, and that this way the on-board computer, with necessarily limited resources, is free to perform other tasks.

10.3 Indeed this requires data transmission, but the trade-off is known to the person skilled in the art, who would choose one of the two options depending on the circumstances.

Finally, the applicant argued that D1 focused on real-time adaptation during the operation of the vehicle and that this taught away from a centralized solution.  However, the Board disagreed as D1 also conserned real-time adaptation, and it was know that certalised computation may offer the same level of real time as adaptation in the device.

Auxiliary Request

In the first and fourth requests it is defined that “the deep learning models have the video data information as their tagged data”, which according to the Appellant this simplifies and speeds up the model selection step. However, this did not change the assessment of the Board.According to the Appellant this simplifies and speeds up the model selection step.

17. The Board remarks that once a library of models for various types of vehicles is defined (see point 9 above), the models need to be indexed by type, so that they can be differentiated and retrieved. This indexing implies a “tag” of some form as claimed.

Claims 1 of auxiliary requests 2, 3 and 4′ (also) define a cross-validation step between the manual and the automatic labeling. The Board considered they were obvious and noted as follows:

 

20. However, if this were the case, it would also imply that the cross-validation would be obvious for the skilled person: Given that D1 already specifies a combination of automatic and manual labeling (paragraph 78, see 2.1 above), the person skilled in the art, knowing how to improve accuracy by cross-validation between automatic and manual labeling, would use cross-validation without exercising any inventive skill.

Finally, the Applicant argued that the invention had number of differences and starting from D1 requred a number of modification. But the Board did not accept this argument:

22. The Board remarks that the number of differences over a certain piece of prior art is neither decisive nor a reliable indicator for the presence of an inventive step.

22.1 First, the number of differences itself may be, and often is, deceiving. One modification may imply or make obvious several other differences. For instance, as in the case in hand, performing the computations on a server instead of on the user vehicle, implies data transmission, and with it a host of other associated “differences” which may or may not be specified in a claim, like an antenna, a transmission protocol etc. A library implies storage, indexing, a retrieving mechanism and so forth. Also, in complex systems it is very easy to accumulate a large number of individual differences while simply considering the different options available to the person skilled in the art.

22.2 Secondly, whether several modifications combine to provide an inventive overall contribution does not depend on their number. For instance they may be obvious solutions to independent, “partial problems”.

Therefore, the Board decided that the appeal was dismissed, and the patent application was refused.

More information

You can read the full decision here: T 2412/22 (Adaptive driving models/STRADVISION) of November 24, 2024, of the Technical Board of Appeal 3.05.06

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