EPO Computer-Implemented Inventions – Spring Case Law Review

As we all bed into virus lock-down, here is a quick review of a few European Patent Office Board of Appeal cases that relate to computer-implemented inventions (so-called “software patents”).

T 2272/13 – Inventory Tracking

This first case (see link here) considered a claim related to the management of a set of distributed devices. These devices included a “mother device” that needed to track a number of “satellite devices” over a Wireless Local Area Network (WLAN). The claim involved sending a “reachability request” and alerting a user if one of the “satellite devices” did not respond. The invention was described in the context of portable inventory tracking, e.g. tracking personal belongings and locating lost devices.

“Where is my phone?”

At first instance, the Examining Division refused the case for relating to a “non-technical” inventory scheme. The Board of Appeal were highly critical of the Examining Division’s decision, in the end remitting the case back to first instance for search and examination. This was despite the specification of WLAN being a choice from a set of described protocols that included RFID, infrared and Bluetooth.

This case may be of use to applicants and appellants that are facing difficulties at first instance, especially where objections assert that any “technical” features of the claim are deemed to be “notorious” or common general knowledge. The Board cited previous cases T 690/06 and T 1411/08 and asserted that the term “notorious” had to be interpreted narrowly. To prove that a technical feature is “notorious”, it is necessary for the examining division to indicate that it is “so well known that its existence at the date of priority cannot be reasonably disputed” and that the “technical detail is not significant”. The Board were also critical of the Examining Division’s assertion that the claims related to “the automation of [excluded] processes”.

The case continues a trend within the Board of Appeals to clamp down on lazy refusals from the examining divisions; the preferred approach is for at least some prior art to be cited, and for evidence-based reasons to be provided.

T 1442/16 – ECG Monitoring

This second case (see link here) was directed to medical monitoring, in particular to the collection and display of electrocardiogram (ECG) data. The main request was broader, referring to “sensors”, whereas the auxiliary request was limited to “ECG electrodes” and “ECG data”. The more concrete “ECG” auxiliary requests were analysed in detail.

My beating heart.

It was determined that the claims of the auxiliary requests differed from the closest prior art in that each axis of a set of multiaxis diagrams displayed ECG data from a respective ECG lead, and that the position and the angle of each of the axes corresponded to the location of the respective ECG lead on the patient. This allowed a three-dimensional heart model to be displayed together with the multiaxis diagrams, where each of the axes in the multiaxis diagrams extended from the centre of the heart model.

The case thus considered whether the differing features above could contribute to inventive step, or whether they related to the “non technical” presentation of information (e.g. as per Article 52(2)(d) EPC).

The appellants began by arguing that the arrangement of the axes reflected an underlying state of a technical system – the technical system being formed by the set of ECG sensors. The Board of Appeal disagreed with this – the arrangement of the data was found not to prompt the physician to interact with the ECG device or to contribute to the functioning of said device. The Board felt that the alleged technical effect relied on the user’s cognitive abilities, for example the physician’s knowledge of anatomy and the principles underlying ECG. As such the differing features set out above were deemed to be “non-technical” on the grounds that they related to the presentation of information. They were thus disregarded, and a lack of inventive step was found. A “polygonal shape” of certain auxiliary requests was also found to be “non-technical”. The appellant did manage to have some success with the last auxiliary request, where the addition of an alarm trigger moved the claim away from the presentation of information.

This case makes it clear that where sensor information is being displayed, to avoid features being dismissed as relating to the presentation of information, the underlying system being sensed needs to be a technical system; the human body is not considered to be a technical system. It appears not to have helped the appellant’s case that the arrangement of the data related to an approach that was well-known to physicians (the Cabrera system). Arguments for an inventive step will also be strengthened if the display of information facilitates interaction with the sensing device.

As an aside, the Board also indicated that just because additional features were introduced gradually, with language such as “in another embodiment”, this did not mean that the applicant has a “carte blanche to mix and combine features from different embodiments as they please”. It seems that the EPO will only accept a combination of features if an example is provided that explicitly has those features. This is something to beware of when drafting applications for Europe.

T 0247/15 – Targeted Online Advertising

The last case (see link here) concerned the selective delivery of advertisements to a plurality of online users.

Old school advertising.

In the Board’s view, “advertising” is, in general, considered a “non-technical” activity by the European Patent Office. Consequently, the content of advertisements or any effect the advertisements might have on a user’s behaviour or on the sales of a product (or a service) are not regarded as technical features or technical effects that, when present in a patent claim, can contribute to an inventive step.

In particular, the Board considered that the described effect of delivering advertisements more “efficiently” was not a technical effect, as it did not relate to a technical aim to be achieved or a technical problem to be solved by a skilled person. For example, “efficiency”, as described in the application, related to a more “efficient” scheduling of delivery of content or of “optimizing” the delivery of content. On closer inspection these were deemed to relate to the fulfilment of conditions for an advertisement campaign (i. e. assuring that content is delivered to users according to the agreement with the advertisers) and maximizing the quantity of delivered advertisements. The “efficiency” and “optimization” thus did not relate to a “technical” system, e.g. they did not consider the utilisation of technical resources of the computer network, for example. Instead, these related to contractual constraints of the advertising campaign. Selecting what type of advertisement will be delivered to a user based on their profile (e.g., a default or targeted advertisement), monitoring the delivery of advertisements and updating the delivery list accordingly, were all considered to relate to an underlying business model. The solution was thus deemed an administrative method that involved the scheduling of delivery of online advertising content, which in turn was based on an abstract mathematical model. It could not support an inventive step.

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