T 816/09 – Untechnical Measurements

This is an examination appeal.

Claim 1 on file read:

1. A system for operating a virally marketed facility, comprising:a processor;a memory coupled to the processor;a user interface coupled to the processor;wherein the processor is to:

• measure virality of the facility based on a conversion rate and a propagation rate;
• determine potential options for increasing virality; and
• execute potential options for increasing virality.

The Examining Divison (ED) considered that the problem addressed was of a business nature, namely how to enhance the profit of a virally marketed business facility. The solution proposed was to measure the effectiveness of the viral marketing campaign by tracking the results (number of invitations, number of registrations) and to pursue only business options that increased the virality and profitability of the campaign. No technical problem other than the implementation of the business model on a computer system appeared from the application. The implementation did not go beyond notorious technical functions associated with any business/administrative task on a computer system. Thus the ED refused the application for lack of inventive step.

The Board came to the same conclusion:

[3] In the light of A 52(1)(2)(3), A 56 EPC 1973 requires a non-obvious technical contribution (see e.g. T 641/00 [headnote 1]; T 1784/06).

[4] The Board does not consider the problems put forward by the appellant to have a technical character.

Viral marketing utilises human social behaviour to (self-)propagate information which effectively advertises a facility (such as a website). It is a marketing person’s choice to consider high propagation and conversion rates of an advertisement as indicators of success of a marketing campaign and to call those rates the virality of the marketed facility.

It is the marketing person that seeks to increase the marketing success as judged by his/her definition of virality.

[5] The Board does not consider that any “measurement of any property is an inherently technical task” […]. It will crucially depend on what is “measured”, and whether or not the measurement involves technical means. For example, the description mentions […] that the ultimate “measure” of success is revenue, which is a financial concept. At paragraph 0047, the virality of a website is measured by evaluating public discussion, which could simply be achieved by interviews (mental acts).

[6] Thus, the technically skilled person comes into play only at the implementation level. However, counting click rates to measure the popularity or virality of a website does not require an inventive step.

This finding is implicitly acknowledged by the application which leaves technical implementation details to the skilled reader.

Trying out whether a variation of a website increases or decreases its popularity does not imply any non-obvious technical consideration, either.

[7] The virality of a website (or other facility) might conceivably be increased by providing it with innovative technical features.

However, claim 1 does not define the nature of the “options” to be executed. Hence, no technical contribution can be derived from the “options for increasing virality”. This view is confirmed by the options defined in claim 2, such as providing additional commercial aspects of the facility […].

[8] Therefore, the Board judges that the system for operating a virally marketed facility according to claim 1 and the corresponding apparatus according to claim 7 do not involve an inventive step.

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T 754/09 – Another Brick In The Wall

The application under consideration concerned a method for submitting a report on a business activity after receipt of a complaint. The decision adds another brick to the impressive wall of “technical or not” decisions.

[5.3] The method of claim 1 (final two paragraphs) enables a proof that the user has transmitted specific data:

(a) the receiver of the complaint data (i.e. the second server) feeds back a confirmation code to the source of the data;

(b) the user’s authorship is verified by checking that the confirmation code works as a key to decrypt an encrypted version of the complaint data.

Providing confirmation feedback from the receiver to the sender is a general aspect of usual acknowledgements of receipt. The application presents confirmations in the form of a decryption key or in the form of a code or number as largely equivalent means of proof […].

Decryption is a mathematical method which serves a technical purpose in a technical system where cryptography is used for data security.

However, in claim 1, the decryption operation is used for proving the authorship of a document, which is a non-technical, legal problem. Therefore, the intrinsically non-technical, mathematical method of decryption cannot derive a technical character from the problem solved (T 1227/05 [3.1]). Thus, providing and using the decryption key for fulfilling a legal verification task does not enter into the examination for an inventive step.

It is not always easy for outsiders like me to understand the borderline between what is considered technical and what is not. Moreover, the Boards appear not to agree with each other. In T 1326/06, for instance (reported and translated here), Board 3.5.06 had found that “methods for encrypting/decrypting or signing electronic messages have to be considered to be technical methods, even if they are essentially based on mathematical methods.”

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T 1539/09 – Going Mental

This is an examination appeal.

Claim 1 of the main request before the Board read (in English translation, based on the parallel U.S. application):

Computer-supported method of producing and/or executing programme code (software code), with at least one visualisation surface for the representation of establishable objects, by way of which information is inputted and outputted when executing the programme code, wherein objects of the visualisation surface are writingly and readingly accessed by means of the produced programme code, wherein programme components of the category run and function are provided for selection, characterised in that the components category run comprises the run (9), start (8,13), event (11) and end (10, 17) components and wherein the components category function comprises the function component (12) and instructions for the interconnection of programme components are predetermined, which regulate the call-up of the programme components and the serial or simultaneous execution thereof,

• such that programme components of the category run are always serially interconnected, thereby establishing that execution thereof takes place chronologically, so that during the execution of the programme only one run component is executed at a time;
• such that in the case of a branching the execution of the programme course is guided to one of a plurality of different run components by the establishment of a condition;
• such that the start of a run is effected by a start component and the start component is designed such that it calls up a run component or an end component and that the end component forms the conclusion of a run;
• such that the component type event (11) of the category run is called up by events which occur in the execution of the programme and in turn can call up a run component or a function component, and
• such that the function component is called up by a component type of the category run and tasks which are implemented parallel with the calling-up component are carried out by the function component, wherein the function component itself cannot call up a programme component,

wherein a symbol (8-13) is allocated to each of the selected programme components and represented on a structure diagram representing the execution of the programme, wherein the symbols (8-13) are further automatically connected to each other by means of lines representing serial and parallel execution, taking account of the predetermined rules, thereby representing the programme structure and the execution of the programme.

Paragraph 4 of the decision has something to say on the contribution of programming to the solution of a technical problem:

*** Translation of the German original ***

[4] The invention is directed at a graphical programming language and environment designed to make a user capable of generating programme code without particular know-how and without having to learn a great deal. The Board is of the opinion that the effect consisting in reducing the mental effort of the user in programming is not a technical effect. This is all the more true as [this effect] is sought for all programmes, i.e. irrespective of the purpose which the programme is to serve.

[4.1] When programming – i.e. formulating programme code, “encoding” – a programmer has to choose the formulations that lead to the desired result from among the repertoire of a programming language. In this context the programming language defines, on the one hand which formulations are “well-shaped” (“wohlgeformt”) and, therefore, admissible at all (syntax), and, on the other hand, which “behaviour” (“Verhalten”) is attributed (zugeschrieben) to a programme (operational semantics). In particular cases the choice of the programming language can have an influence on how easily (and sometimes, if at all) the solution of a problem can be formulated as a programme.

[4.2] However, the Board is of the opinion that the action of programming is essentially a mental process – comparable to the verbalisation of a thought or the formulation of a mathematical fact in a calculation – which, to quote the Enlarged Board of appeal (G 3/08 [13.5.1]), lacks “further technical effects”. This holds true at least when and to the extent that, as in the present case, the action of programming does not serve in a causal way the realisation of a technical effect within the framework of a concrete application or environment.

[4.3] Therefore, the Board comes to the conclusion that the definition and provision (Bereitstellung) of a programming language or of means related to a programming language per se does not contribute to the solution of a technical problem.

NB: The Board also provided a headnote:

The action of programming – that is to say, formulating programme code – is a mental process, at least to the extent that it does not serve in a causal way the realisation of a technical effect within the framework of a concrete application or environment.  Therefore, the definition and provision of a programming language per se does not contribute to the solution of a technical problem, even if the choice of the means of expression related to the programming language serves to reduce the mental effort of the programmer.

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T 309/10 – Inside The Librarian’s Mind

This is an examination appeal.

Claim 1 of the main request read:

A document repository system allowing electronic storing and referencing of documents comprising:

a storage device;

a network interface;

a processor coupled to the storage device, said processor adapted to:

process a symbol to generate a master symbol (115) including applying a set of normalisation rules to the symbol;

assign a parent identifier (110) to the master symbol (115), wherein the parent identifier (110) is assignable to a plurality of master symbols (115);

store the parent identifier (110) and the master symbol (115) in a master symbol database wherein the master symbol is linked to the parent identifier (110);

store at least one document wherein the at least one document is linked to the parent identifier comprising the steps of:

generating a document identifier;

storing the document identifier and the parent identifier (110) so that the parent identifier is linked to the document identifier in a relational database; and

storing the document and the document identifier so that the document identifier is linked to the document;

receive an input symbol which contains symbol segments (120);

process the input symbol to generate a normalized symbol including:

applying a set of normalisation rules to the input symbol; and

searching a normalization table database (417) of sets of symbols each set relating to a master symbol using the symbol segments to return corresponding master symbol segments (1527);

search the master symbol database using the normalized symbol to find a matching master symbol and a parent identifier linked to the matching master symbol;

search an information element database to find a document linked to the parent identifier; and

retrieve the document linked to the parent identifier.

[11] In the system defined by claim 1, the processor is adapted to carry out the steps of the core method, set out above.

[12] The invention defined in claim 1 does not involve an inventive step (A 56 EPC 1973) if, when faced with the technical problem of implementing the core method, the provision of a storage device, a network interface, and a suitably adapted processor would have been obvious. Here, “suitably adapted” means that the table of master symbols, the table linking document identifiers and parent identifiers, and the database of documents must be electronically stored; and it must be the processor that carries out the steps, including normalisation.

[13] In the Board’s view, any computer implementation must make use of storage, and whatever carries out the method steps, which the skilled person seeks to implement, can be called a processor. Thus, inevitably, there would be storage, and all the steps of the core method would be performed by a processor, which must be adapted to perform them.

[14] The only options open to the skilled person would be the provision of a network interface, and the choice of storing the tables and database in electronic or magnetic storage (the claim does not specify the form of storage, but it can be taken, implicitly, as normal computer storage). In the Board’s view, in choosing to implement the core method on a general purpose computer, both of those optional features would have been provided. Since general purpose computers were known for their ability to store and process data reliably and quickly, their use would have been obvious.

[15] The appellant has argued that the invention makes the retrieval of relevant documents easier and more accurate. That argument bears on the non-technical problem of librarianship. The same advantage accrues to any library, regardless of its technological substrate; regardless, indeed, of whether or not there is a technological substrate at all. The Board does consider that retrieval and accuracy might, in some circumstances, be technical issues. The Board in T 654/10 evidently considered them to be so in that case. However, the Board, in the present case, has reasons (set out above) for considering them to be non-technical in this case.

[16] The argument that a librarian would not, or could not, maintain the information required in his head, so that the invention does not amount to the automation of a mental act is not apposite; nor would it be sufficient to change the result if it were. The claimed repository need not be large. According to the claim, it is sufficient to have one master symbol, one parent identifier, and one document. In such a case, it would be entirely possible to perform the method mentally. Naturally, even the problem of librarianship would then be trivial. A librarian would normally have to deal with more than can easily be done without some assistance. He might, for example, as librarians often have done, use a card index to store associations between master symbols and parent identifiers. The method, however, remains the same, independently of any technical substrate used for storing information, whether it be pencil and paper, cardboard and ink, or digital storage.

[17] The further argument that implementation using a computer system would allow the repository to grow larger than without cannot change the Board’s assessment that using computers for what they are good at - storing and processing large amounts of data quickly - was an obvious measure.

[18] The argument that the invention cannot be seen as an automation of a known method, because the method, in this case, was not known, fails because the novelty of non-technical methods is irrelevant (cf. T 641/00 [headnote 2]).

[19] In conclusion, the main request cannot be allowed, because the subject matter defined by claim 1 does not involve an inventive step (A 56 EPC 1973).

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T 1670/07 – We Don’t Buy It

This is an examination appeal.

Claim 1 of the main request before the Board read:

A method of facilitating shopping with a mobile wireless communications device (12) to obtain a plurality of purchased goods and/or services from a group of vendors (14) located at a shopping location (16) comprising:

communicating from the mobile wireless communications device with at least one server (18) a selection of two or more goods and/or services to be purchased by a user of the mobile wireless communications device on or before the user shops at the shopping location;

the at least one server, in response to information stored therein regarding vendors located at the shopping location and the goods and/or services offered by the vendors and the selection of the plurality of goods and/or services to be purchased by the user, causing at least an identification of the vendors from which available ones of the two or more goods and/or services may be purchased and the available ones of the two or more goods and/or services to be transmitted to the mobile wireless communications device; and

the mobile wireless communications device providing to the user an identification of the available ones of the goods and/or services to be purchased and an itinerary (120) of the user setting forth at least a choice of an order in which the user visits the identified vendors to obtain the goods and/or services to be purchased wherein the itinerary is a function of at least one profile of the user.

The Board found this claim to lack inventive step. The decision is interesting because the Board identifies three fallacies related to cases where inventions mix technical and non-technical features.

[4] It is common ground that claim 1 of the main request differs from D1 in that the user can obtain goods from a plurality of vendors located at the shopping location and in that the user is provided with an itinerary with the choice of an order to visit the identified vendors, the itinerary being a function of a profile of the user.

[5] The examining division considered that obtaining goods from a plurality of vendors was not technical and was not relevant for assessing inventive step […]. The problem was seen to be how to provide a technical means to optimise an itinerary […]. By including the feature of the itinerary in the problem, it appears that the division must have considered that it did not contribute to inventive step, i.e. was also non-technical. The solution of the provision of the choice of an order of visiting vendors and making the itinerary a function of a user profile were considered to be obvious […].

[6] However, the Board goes further than the examining division and does not consider that the features of providing a choice of an order of visiting vendors and making the itinerary a function of the user profile have any technical effect either. In the Board’s view, the overall effect of the method, namely to produce an ordered list of shops, is not technical.

[7] The appellant considers that the selection of a group of vendors at a shopping location contributes to the technical character of the invention. Decision G 1/04 is referred to as noting that a non-technical feature may interact with technical elements so as to produce a technical effect. This decision refers to T 603/89 as the basis for this statement.

[8] This decision in turn cites T 26/86 as an example where the mix of technical (X-ray apparatus) and non-technical features (computer program) as a whole produces a technical effect (extending of the life of an X-ray tube). It also gives the counterexample of T 158/88 where the technical features (displaying characters on a screen) and non-technical features (processing data according to the specific selection criteria) produce an effect (replacing data representing a specific character form by data representing the same character in a different form) that differs only in the information displayed, and is not technical. In T 603/89 itself, the technical features (physical marker that is placed on keyboard of an instrument) and non-technical features (displaying numbers and notes) produce an effect (improvement of a teaching method) that is an improvement of a method for performing a mental act and thus also not technical.

[9] In the present case, the appellant argues that the alleged non-technical feature of the information regarding the group of vendors “interacts with technical elements, in the form of the server 18, to produce a technical effect in the selection of vendors and the transmission of processed information regarding that selection to the mobile wireless communications device”. However, in the Board’s view, this is an instance of the well-known argument that could be termed the “technical leakage fallacy”, in which the intrinsic technical nature of the implementation leaks back into the intrinsically non-technical nature of the problem. In this case, the “selection of vendors” is not a technical effect and the mere “interaction” with technical elements is not enough to make the whole process technical as required by the jurisprudence. Similarly, the transmission of the selection is no more than the dissemination of information, which is in itself also not technical. These effects are more like those in T 158/88 and T 603/89 than in T 26/86. Technical considerations only come into play once the relevant features are implemented.

[10] The appellant also argued that the difference of identifying a group of vendors rather than a single vendor as in D1 implied a problem of logistics, which was not a business method. However, the Board considers that a logistic or navigation system that actually involves navigation to a particular place might have some technical element, but the present invention does not as it does not involve any physical elements, but simply indicates possible choices. Moreover, in the Board’s view, producing an itinerary is not technical as it involves only standard human behavioural concepts such as going to the bank and then going to the supermarket. The appellant replied that the physical act of going to the locations conferred technical character on these thoughts.

[11] Here again, the Board sees something of a well-known argument that could be termed the “broken technical chain fallacy” after decision T 1741/08. This decision dealt with the fairly common situation that arises in connection with graphic user interfaces (GUIs) where a technical effect might result from the user’s reaction to information. The decision essentially concluded (see point [2.1.6]) that a chain of effects from providing information to its use in a technical process is broken by the intervention of a user. In other words, the possible final technical effect brought about by the action of a user cannot be used to establish an overall technical effect because it is conditional on the mental activities of the user. This applies to the present case because any possible technical effect depends on the user’s reaction to the itinerary.

[12] The appellant also argued that according to T 362/90, providing a status indication about the state of a system was a technical effect. It is true that T 115/85 states that giving visual indications automatically about conditions prevailing in an apparatus or system is basically a technical problem. In that case the system was the input/output device of a text processor. T 362/90 cites this decision in support of the technical character of a simultaneous optical display of a current and ideal gear selection based on conditions in a gearbox. In the Board’s view, the display of an optimal shopping itinerary is different because there is no comparable technical system since shopping is intrinsically non-technical. The availability of goods in a shop and information on shopping lists are not comparable with the status of a technical system. Furthermore, although the system of the invention has a server and a mobile device that are undoubtably (sic) technical, the invention is not displaying information about the status of these devices themselves, but only non-technical information that they process.

[13] In summary, therefore, the Board is of the opinion that a technical effect may arise from either the provision of data about a technical process, regardless of the presence of a user or its subsequent use, or from the provision of data (including data that on its own is excluded, e.g. produced by means of an algorithm) that is applied directly in a technical process. In the Board’s view, neither applies to the present case.

[14] Thus, in the Board’s view, the appellant’s formulation of the problem as “the provision of a technique which has greater flexibility and can provide results tailored to a user’s preferences” is not a technical problem and is also far too general because it does not correctly take into account non-technical aspects. In the Board’s view, the problem is the much more specific one of how to modify the prior art to implement the non-technical aspects, in this case how to plan a shopping trip (itinerary) that includes orders from different vendors.

[15] Concerning the implementation, the Board first notes that it is essentially only claimed in functional terms and that there are no details of how it is actually done. The only technical features of the solution are the hardware elements themselves and the specification of which elements perform the various steps. The elements of a mobile wireless communications device and a server are conventional and moreover known from D1. The only assignment of function that is specified is that the server determines the vendors as function of the orders and the location. Since D1 determines the vendor for a single order at the server, it would be obvious to consider determining multiple vendors in the case of multiple orders.

[16] At the oral proceedings, the appellant stressed that the system of D1 only identified one facility whereas the invention identified a group of vendors and gave navigation information about how to visit them. If the system of D1 were to be used to order several items, it would only return information on a single vendor that could supply all the items. There might be no single vendor capable of doing this, or the vendor might be a long way away from the customer. The invention would be able to find more than one vendor that together could fulfil the order. Thus the invention solved the problem of reducing the number of failed attempts to fulfil an order. In the Board’s view, this is another example of a standard argument, which could be termed the “non-technical prejudice fallacy”. The argument essentially invokes non-technical aspects as a reason for not modifying the prior art, whereas these features cannot in fact contribute to inventive step. The question is not whether the skilled person would consider providing these features because that has already been decided in formulating the technical problem. The question is simply how it would be done. As mentioned above, in this case, the “how” comprises conventional hardware carrying out the tasks in an obvious way. In particular, there is no technical reason why the skilled person would not have considered modifying the various parts of the system of D1, at least to the extent claimed, to solve the problem posed.

[17] It follows from the above, that in the Board’s view, the appellant’s analysis of why the repeated selection of vendors according to D1 is not equivalent to the claimed solution is moot.

[18] Accordingly the Board judges that claim 1 of the main request does not involve an inventive step (A 56 EPC 1973).

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T 1119/09 – Mere Instructions

This is an examination appeal.

Claim 1 of the main request on file read (in English translation):

1. Apparatus for controlling or regulating a system based on a basic object model which represents the functionality of a runtime system and/or of the system to be controlled or to be regulated, comprising a data processing device for processing a first object type having a predetermined data structure which is part of the basic object model, and which can be instantiated for objects, characterised in that the first object type comprises a type data field (DV) and in that the data processing device allows to store additional allocation information of the object type relating to an additional tool which is not part of the basic object model, in the type data field.

Board 3.5.05 dismissed all requests for lack of clarity.

It nevertheless discussed the underlying technical contribution and inventive step.

*** Translation of the German original ***

[6] The application emphasises that the object oriented software is to be used for controlling industrial processes but nevertheless leaves the nature of the system to be controlled as well as the kind of programme control essentially undefined.

[6.1] As a matter of fact, the Board is of the opinion that the structure of the claimed control apparatus, which comprises a runtime and an engineering system, is independent of the system to be controlled and of the precise way in which the control is performed. Moreover, this partition does not depend on whether the runtime or engineering system us used for developing an industrial control or another application, such as e.g. a company software. Rather, this partition is typical for programme development contexts of all kinds, as they were known well before the priority date of the present application.

[6.2] The appellant argued that it was specific for industrial control systems that they have to be developed during operation. Thus the claimed extension by an additional tool that had not been foreseen from the very beginning, such as an editor, was an integral part of such a control system and, therefore, had to be considered to be technical.

[6.3] The Board does not see any reason to doubt that the development of an industrial control during operation can be necessary, although it should be noted that the independent claims of all requests do not state when, with respect to the run time of the control system, the allocation to an new additional tool or editor is to be performed. However, the development during operation is not specific to industrial controls but is also relevant and commonplace for other applications such as, for instance, in the banking and insurance industries. More importantly, the Board is of the opinion that the precise moment of use of the claimed invention does not change the fact that the allocation of objects to a new tool, which is an aspect of programme development, has to be allocated to the engineering system and not to the runtime system or the system that is to be modelled.

[6.4] Thus the Board comes to the conclusion that the claimed invention does not solve any specific problem belonging to the field of industrial control and, therefore, does not make any technical contribution to this field.

[6.5] Thus the indication in the claim of an unspecific application “for controlling or regulating” as such is not sufficient for establishing the presence of an inventive step.

[7] As against a known industrial control such as the one disclosed in the application […] claim 1 of the main and first auxiliary requests provides an apparatus by means of which an “additional tool which is not part of the basic object model” can be allocated to an object type or at least to individual object instances.

[7.1] The application describes this mechanism as an alternative to a so-called conventional intervention on the original object model, which required the introduction of new object types […]. The new allocation of an “additional tool” to given objects was said to change the overall behaviour of the control system. However, this change does not depend on whether the allocation is done in the conventional way – which is said to be relatively laborious (aufwändig, sic) […] or according to the invention. Consequently, the effect related to the claimed allocation mechanism does, in particular, not depend on whether the new “additional tool” is an editor or another application, and on whether it is allocated to a “technological object type” or another object type.

[7.2] The decision to allow (or enforce, as the case may be) the access to certain objects by means of certain tools determines how the software developer has to proceed when creating software. The Board is of the opinion that such decisions qualify as instructions to the software developer which as such do not have any technical effect (see also T 354/07 [4, last two paragraphs]).

[7.3] Thus at best the means by which the desired allocation is implemented in a given system – in the present case the provision of a type data field of the object type (main request) and its optional use for generating an object instance (auxiliary request) - can make a technical contribution.

[7.4] However, the appellant did not submit that these means did make a technical contribution of any kind, nor which contribution this could be, but only based the presence of a technical contribution on the field of application, i.e. industrial control. As explained above, the Board is of the opinion that the claimed subject-matter does not make any technical contribution in this field, and that the limitation to this field of application as such cannot justify the presence of an inventive step. Moreover, the Board cannot see any apparent technical contribution made by said means.

[7.5] Thus the Board has no reason to deviate from its provisional opinion expressed in the annex to the summons, according to which the main and auxiliary requests did not involve any inventive step, A 56 EPC 1973. The Board adds that none of the additional features according to the auxiliary requests 2 to 5 filed during the oral proceedings allows to overcome this objection.

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T 1331/12 – Another Slot Machine

Gaming and gaming rules are a rich source of Board of appeal case law.

Claim 1 of the main request before the Board read as follows:

A slot machine system, comprising:

(a) a client apparatus (20) operable to communicate a bet regarding a spin of the reels of a slot machine; and

(b) a controller apparatus (40) communicably coupled to the client apparatus (20) and operable to determine values for said reels and to determine the output of a bet based upon said values;

characterised in that the controller apparatus (40) is operable to:

(i) determine a first value for a first reel of the slot machine based at least in part upon the value of a digit of a first financial market indicator, in which said value of said digit is the value thereof that occurs at the moment when a predetermined period of time has passed after receiving the bet;

(ii) determine a second value for a second reel of the slot machine;

(iii) determine a third value for a third reel of the slot machine; and

(iv) determine the outcome of the bet based at least in part upon the first value, the second value, and the third value. (my emphasis)

Background

[2.1] The present invention concerns a slot machine system which allows a user to play a betting game by placing a bet on a spin of reels of a slot machine. The idea of placing a bet on a spin of reels of a slot machine concerns a game rule. Thus the system of claim 1 includes aspects of schemes, rules or methods for playing games, which are per se excluded from patentability under A 52(2)(c). However, the claimed system also includes technical aspects, in particular the client apparatus and controller apparatus comprised in the slot machine system. The claimed system therefore possesses overall technical character (following T 258/03), even if it is “mixed” (with both technical and non-technical aspects).

[2.2] In dealing with such “mixed” inventions, the Board adopts the approach as set out in T 1543/06  [2.1-9], which is based foremost on T 641/00. Thus, only those features that contribute to technical character are to be taken into account when assessing inventive step. That requirement cannot rely on excluded (non-technical) subject matter alone however original it may be. The mere technical implementation of something excluded cannot therefore form the basis for inventive step. A consideration of the particular manner of implementation must focus on any further technical advantages or effects associated with the specific features of implementation over and above the effects and advantages inherent in the excluded subject-matter. In the present case it is necessary to consider what claimed aspects are non-technical, how they have been technically implemented, and whether such implementation is inventive over the prior art.

[2.3] “Game rules” form part of “……a regulatory framework agreed between [or with] players and concerning conduct, conventions and conditions that are meaningful only in a gaming context. It is important to note that it is normally so perceived by the players involved, and as serving the explicit purpose of playing a game. As such an agreed framework it is a purely abstract, mental construct, though the means for carrying out the game play in accordance with such a set may well be technical in nature”. See T 336/07 [3.3.1]. As noted in T 12/08 [4.6], game rules “form the abstract formal structure of a game describing the interplay between player actions and the choices offered within the game.” A set of game rules thus determines inter alia how game-play evolves from beginning to end in response to player actions and decisions and the goals to be achieved to conclude game-play.

Inventive step

[3.1] It is undisputed that a notorious slot machine system comprising a client apparatus and a controller apparatus, whereby the controller apparatus is communicably coupled to the client apparatus, can be considered as the closest prior art. For the skilled person, a game system developer with software engineering skills, such a notorious system thus represents a good starting point for assessing inventive step.

[3.2] With respect to such a notorious prior art system, the system of claim 1 differs only in the way in which the first value for the first reel of the slot machine is determined, as defined in feature (i) of the claim according to the main request concerning the determination of the first reel value based on a future financial market indicator. Claim 1 of the auxiliary request differs by the further specification that the time at which the future indicator is determined is identified in the bet.

The further features (ii) to (iv) of the characterizing part of either version of claim 1 - determining spin reel values for second and third reels, determining the bet outcome on the basis of the three values - are standard if not implicit features of a notorious client controller slot machine system. Naturally such systems determine reel values and bet outcomes. None of these features, including the specific number of reel values, is of any particular significance, either in their own right or in relation to feature (i), nor has this been argued. Features (ii) to (iv), if novel, are thus obvious.

[3.3] In accordance with the application as published, one of the objects of the invention is to increase player appeal by providing a new playing experience to the user […]. This is achieved because, from the player’s perspective, he is not playing a conventional slot machine game but one which involves betting on a digit of a financial market indicator at a point of time in the future he determines by placing his bet. He does so knowingly by specifying, when he places his bet, “the period of time used to determine the appropriate financial market indicator”, as well as “a particular digit of [the] … indicator” and “one or more financial instruments used to determine [the] … indicator” as bet parameters […]. He may also specify the relevant financial market indices, e.g. DJIA, S&P 500 or NASDAQ […]. He thus knowingly bets against a financial market indicator (or rather digit thereof) at a time in the future that he chooses via the intermediary of a (simulated) spin reel of a slot machine. In the Board’s view this constitutes a new betting scheme or game. A set of betting rules and conventions of this new betting game can be formulated as follows:

• place a bet by indicating a particular digit of a selected financial market indicator and a period of time (after the bet is placed) when the indicator should be determined
• determine the value of the financial market indicator at the time indicated in the bet and display it as the value of the first spin reel of the slot machine
• determine the outcome of the bet based on this value.

Adopting the approach outlined above, inventive step can reside only in the way these betting rules are implemented. The technical aspects of the feature (i) reflect the implementation of the game rules, namely that they are implemented by operating the controller apparatus.

The objective technical problem can therefore be formulated as how to implement the above game rules on a notorious slot machine game system comprising a client apparatus and a controller apparatus.

[3.4] The Board holds that it would be obvious for the skilled person to use the controller apparatus available in the notorious slot machine system to implement the above game rules. Indeed, in an electronic gaming system such as a notorious slot machine with client and controller, it is standard that the controller – usually in the form of a programmable central processor – regulates game play, ensuring game inputs and outputs are as dictated by the game rules. In this case, the game rules and conventions dictate that the specified digit of the selected financial market indicator is determined at expiry of the chosen period of time and that the value is then displayed on the spin reel and this is exactly what the controller is configured to do. It is then obvious that the skilled person, tasked with implementing the new betting game on a notorious slot machine, would assign that particular task to the controller. The Board adds that the claim offers no further details as to how the implementation is carried out. Feature (i) is thus also obvious for the skilled person. As it is unrelated to the features (ii) to (iv) also held to be obvious, if novel, the Board concludes that the claimed subject matter lacks an inventive step and thus fails to meet the requirements of A 52(1) in combination with A 56.

[3.5] The fact that this new betting system may be less susceptible to tampering than a slot machine system using a random number generator to generate the spin reel numbers is immaterial. This effect can neither form the basis for formulating the objective technical problem addressed by the invention, nor does it represent a further technical effect in the sense of T 1543/06 [2.8].

In particular, the claimed system is less susceptible to tampering because it changes the betting scheme so that bets are not placed against randomly generated numbers but against a future financial market indicator. This is not a technical effect that results from the particular way in which the game rule is implemented, it is rather a direct and inevitable consequence of the betting game having been changed. The rules are changed and the random number generator can be dispensed with. The claimed invention therefore does not address the problem of tampering in random number generators in an inherently technical way – for example by modifying its mechanism to be less susceptible to tampering. Rather, it offers a non-technical gaming solution which effectively circumvents the technical problem by changing the rules, thereby obviating the need for the random number generator, similar to T 258/03 [5.7]. However ingenious this gaming idea may be, it cannot contribute to inventive step in the sense of A 56. That requirement is a technical requirement to be assessed from the point of view of the skilled person in the relevant technical field. Here that is the software engineer or designer specialising in gaming software who is tasked by the games designer with implementing the new game. From his point of view the way the game rules are implemented in claim 1 of either request, namely by having the game controller carry out the tasks of the betting authority in such a betting scheme, is obvious.

For the same reasons the Board does not consider the claimed invention to offer an alternative “simulated randomizing device” to the random number generators commonly used in client controller based slot machine systems. This argument might have held if the betting scheme operated by the system remained the same, i.e. the player placed the same bet as before. This is not the case, as the bet parameters above indicate. It is thus the betting scheme which has changed, necessitating a different operation of the controller.

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T 964/12 – Technical It Is

This is one of those cases where the Boards disagree with an Examining Division (ED) refusing an application subsequent to a no-search declaration.

Claim 1 of the main request before the Board read:

1. A computer implemented data processing method of processing an order, the method comprising the steps of:

• providing a transport layer (503, 542) for transmitting a first message (515) from an order capturing application (505; 605) to an order fulfillment application (620; 625), wherein the transport layer is provided by an integration engine (503) and an integration directory (415; 542),
• capturing an order by means of the order capturing application (505; 605),
• generating the first message by the order capturing application (505; 605), the message body of the first message carrying an order document and an indication of a receiving organizational entity,
• transmitting the first message (515) from the order capturing application to the integration engine (503),
• determining by a logical routing framework (530) of the integration engine (503) the logical name of an order fulfillment coordination engine (603) from the indication of the receiving organizational entity using a routing model directory (540) comprised in the central integration directory (415; 542),
• storing by the integration engine (503) the logical name in the header of the first message,
• converting by a mapping framework (545) of the integration engine (503) in the message body (525) the format of the order document to the format of the order fulfillment coordination engine (603) using a mapping directory (547) comprised in the central integration directory (415; 542),
• determining by a physical address resolution framework (559) of the integration engine (503) the physical address of the order fulfillment coordination engine (603) from the logical name stored in the header of the first message, wherein the determination of the physical address is performed using a service directory (548) comprised in the central integration directory (415; 542)
• storing by the integration engine (503) the physical address in the header (520) of the first message (515),
• sending the first message (515) from the integration engine (503) to the order fulfillment coordination engine (603) using the physical address,
• processing the order document by the order fulfillment coordination engine (603) to provide at least a second message, the second message carrying an order fulfillment document (615) and an indication of the order fulfillment application (620, 625), and
• transmitting the second message from the order fulfillment coordination engine to the order fulfillment application (620; 625) by means of the transport layer.

[2] The ED refused the application because they considered the subject-matter of claims 1 and 7 to be excluded from patentability and that of claim 6 to lack novelty. The essential reasoning was for all claims that the invention comprised no, or merely notorious, technical features. The Board will therefore examine whether that reasoning was correct. This is also necessary in order to determine whether an additional search must be carried out since no search has as yet been performed.

[3] The jurisprudence has laid out the following principles for determining when an additional search should be carried out. In decision T 1242/04 [9] it is pointed out that the search is an essential element of the grant procedure, being designed to identify prior art relevant to the application. The intention is to make it possible to determine, on the basis of the documents mentioned in the search report, whether and to what extent the invention is patentable. Knowledge of the prior art forms the basis for examination of the application by the ED. However, if no search report has been drawn up it is not necessary to carry out an additional search in the documented prior art where the objection is based on “notorious knowledge” (Cf. T 1924/07 [10]). The term “notorious” means prior art which is so well known that its existence at the date of priority cannot be reasonably disputed. It may also imply that technical detail is not significant (cf. T 1411/08 [4.1-2]).

[4] In the present case the Board concurs with the appellant’s view […] that the method and system claims define technical features and technical aspects which cannot be ignored in examining the patentability of the invention.

The skilled person would infer from the application that the claims are not solely related to a business method mixed with abstract ideas how to exchange messages between business people, somehow using purely non-technical computer programs and bypassing any technical means whatsoever, but that the claimed invention is a technical information system for processing data.

Such insights are easily inferred from the various references to computer systems in the introductory Summary […] and the disclosed embodiments of the invention which are implemented using the integration platform Exchange Infrastructure of SAP that “provides an infrastructure that has a middleware which allows technical integration of SAP as well as non SAP systems by using open standards” […].

The (order) fulfillment coordination engine, an essential feature in the claims, “can be implemented with SAP’s Exchange Infrastructure” […].

The exchange infrastructure includes an integration server 425 and an integration directory 415 ([…]. [… T]he application indicates that “integration server 503 and integration directory 542 provide a transport layer for transmitting of message 515 from the sending application 505 to the receiving application 557” (underlining added). The integration server and the integration directory are implemented by the SAP Exchange Infrastructure as shown in figure 9. Hence, the integration server, the integration directory, and the transport layer are technical components of the computer system.

Also the features relating to routing messages through the transport layer, converting data formats and resolving addresses are technical, or at least have technical aspects related to computer-implemented processes.

[5] The collection of these features cannot reasonably be said to fit the narrow definition of “notorious prior art”. An additional search must therefore be carried out.

[6] It also follows from the above analysis that the objections made in the decision under appeal against claims 1, 6 and 7 are not valid. The skilled person – a computer scientist – would not interpret the features discussed above in a way that neither takes into consideration that the invention is computer-implemented, nor has support in the description.

[7] The decision under appeal therefore has to be set aside. The appellant’s main request for grant of a patent is refused since no search has been carried out, but its auxiliary request for remittal is granted. The ED should perform the additional search on the basis of the claims filed with the statement setting out the grounds of appeal dated 23 March 2012, taking due regard to the description and drawings (cf. A 92). […]

The case is remitted to the department of first instance for further prosecution.

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T 862/10 – Look At Me

This is an examination appeal.

Claim 1 of the main request read :

A notification system (120), comprising:

an information display object (160) that presents summarized notifications (124); and

an information controller (130) that receives attentional inputs associated with a user to dynamically generate the information display object (160) on one or more display screens (150, 170) in order to facilitate user processing of the summarized notifications (124);

wherein the information controller is configured to control positioning of the information display object by dynamically moving the display object closer to the user’s focus of visual attention if a notification is determined to be urgent, and

wherein the user’s focus of visual attention is determined by at least one of determining the current cursor position, determining the place of an active cursor, using at least one head or gaze tracking component, using an attention model and determining the user’s activity or other input about focus of visual attention including gaze and pose information.

The Board found this request to lack inventive step :

Interpretation of claim 1

[3.1] During the oral proceedings (OPs), the appellant argued that the expression “dynamically moving the display object” implies a smooth movement, not a “jump”. However, the board considers that there is a priori no reason for such an interpretation and that, in fact, the description of the present application explicitly includes both possibilities of mapping a location either smoothly or in a step-function manner, i.e. by “jumping” in a non-continuous manner; […]. According to the board, the broader interpretation given in this description passage is the one that should apply.

Difference with the closest prior art

[3.2] The board considers, and the appellant has never disputed, that D1 represents the closest prior art for the subject-matter of claim 1. D1 discloses a notification system […], comprising an information display object that presents summarised notifications […] and an information controller […] that receives attentional inputs associated with a user […] to dynamically generate the information display object on one or more display screens in order to facilitate user processing of the summarised notifications […].

This means that the following features distinguish the subject-matter of claim 1 from the disclosure of D1:

(1) The information controller is configured to control positioning of the information display object by dynamically moving the display object closer to the user’s focus of visual attention if a notification is determined to be urgent.

(2) The user’s focus of visual attention is determined by at least one of determining the current cursor position, determining the place of an active cursor, using at least one head or gaze tracking component, using an attention model and determining the user’s activity or other input about focus of visual attention including gaze and pose information.

Inventive step, A 56 EPC 1973

[3.3.1] Looking first at the distinguishing feature (1), it is noted that it is largely similar to what was recognised in the appealed decision as distinguishing the subject-matter of claim 1 of the refused main request from the disclosure of D1. In the appealed decision […], that feature was simply dismissed as non-technical and it was therefore concluded that there was no inventive step. The board however considers that feature (1) needs to be analysed in more detail. The display of an object near the centre of visual attention of a user (within the “foveal vision”), so that it is more-or-less guaranteed to be seen immediately, or its display simply within the visual field of the user, so that it can be seen, may well be seen as technical effects as compared to arbitrary placement on the screen or on one of a plurality of screens. Thus measures to assess where the user is looking and to place a display object in the light of that assessment do qualify as contributing to a technical effect. However, the board notes that in the case of one screen it is a matter of experience that the whole screen is normally within the field of vision of the user. Further, displaying a value assigned to an object by means of its relative positioning, or by moving it on the screen, is clearly a presentation of information. Reference is made to T 1143/06, as well as to T 1741/08, from this board in a different composition, which discusses the case law in this area, including the case cited by the appellant in the grounds of appeal, T 643/00. The particular effects of the claimed invention put forward by the appellant, “minimising information overload and distraction”, can not be considered technical in nature according to the case law, being determined by psychological factors and typical to the question of how to present information in a particular context. Overall the board judges that determining (or attempting to determine) a user’s visual focus of attention as a point on a screen and displaying objects in positions relative to that point can be considered to have a technical effect, but that the particular choice of where to display an object dependent on a value assigned to that object (its “urgency”) cannot be. Thus for the question of inventive step the critical question is whether it would be obvious for the skilled person to adapt the notification system of D1 to take account of the visual focus of attention of the user when placing a notification on the screen.

In D1, the choice of when and how to display messages is based on their priority and on the state of the user (see abstract) and may use a different size and either a central or a peripheral location on a screen for a document or alerting window […]. In D1, the “attentional focus” of a user indicates the activity or computer application on which the user is focused. It determines whether the user is “amenable to receiving notification alerts”, in other words whether the user can be disturbed. In D1 the focus of attention can also be the focus of visual attention, viz. when the user is focusing on some application […], which will necessarily be at a particular position on the screen.

Given that D1 already clearly considers the question of how to present notifications in such a way that high priority messages attract attention, a skilled person will normally be tempted to continue along the same line, i.e. to ensure that urgent messages will receive even more attention. One way of grabbing the user’s attention which will naturally come to mind is to place the urgent information in the user’s focus of attention (visual or otherwise). Such attention grabbing is in fact part of human nature. For example, when a mother wants to attract the attention of her child which has totally immersed itself in a television programme, she may decide to stand in front of the television, i.e. in the child’s “focus of visual attention”.

The system of D1 already contains the necessary means to determine the user’s focus of visual attention (viz. the application on which the user is focusing at a given moment; […]) and it will be a matter of trivial implementation for the skilled person to use these means to determine the user’s focus of visual attention and to place an urgent message, e.g. from the periphery, at that focus of visual attention. Although it is not necessary to discuss the further issue of changing the position of messages according to their urgency, as argued above, the board also notes that in as much as D1 discloses placing non-urgent messages at the edge of a screen and urgent messages at the centre, it is also considered obvious to move a message to a position central to the focus of visual attention if its priority/urgency is increased.

As regards the expression “dynamically moving the display object”, the board considers that this expression covers a “jump” from one place to another, according to the interpretation that should be given to the word “dynamic” following [3.1] above. In the remainder of this section, however, the board assumes, for the sake of argument, that the expression is somehow changed to reflect the meaning given to it by the appellant during the OPs, i.e. that it implies a continuous movement.

The board already judged above that choosing the location of the display object in function of the urgency of the message is non-technical and hence does not contribute to the presence of an inventive step. The only matter left to consider is therefore whether some effect may be caused by the continuous nature of the movement itself, even if, as was argued by the appellant during the OPs, any such effect would only be a side-effect.

Leaving aside the normal physical changes that would occur as a consequence of the inherent technical nature of a computer display, e.g. changes in the intensity of various pixels, the only effect that could possibly be caused by a continuous movement of the display object is to attract the attention of the person looking at the display and present information to him or her that a certain message is urgent. It may also imply a kind of time limit for reacting (before the object reaches the focus of attention). However this is also only a presentation of information; the application does not include any disclosure of any technical consequences of reacting or not within this implied time limit. In other words, continuously moving the display object can serve no other objective purpose than that of presenting information as such. It therefore produces no further technical effect (i.e. no technical effect apart from the normal physical changes which inherently take place in a computer display) and does not contribute to the presence of an inventive step.

[3.3.2] Feature (2) includes several alternatives: the user’s focus of visual attention is determined by any of a number of parameters, including “other input about visual attention”. This means that it clearly also includes the possibility of determining the user’s focus of visual attention by establishing which application is currently receiving the focus of the user. This possibility is however made obvious by D1, as already covered by the reasoning given in [3.3.1] above.

[3.3.3] The subject-matter of claim 1 of the main request is therefore not inventive (A 56 EPC 1973).

[3.4] For this reason, the main request is not allowable.

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