The Boards of Appeal of the European Patent Office (EPO) have recently commented several times on the question of the patenting of graphical user interfaces and have more narrowly defined the area in which features of a graphical user interface can be seen as a technical feature and, therefore, relevant for the assessment of the inventive step. Even though this area remains a grey area, a general trend appears to emerge at the EPO which definitely shows parallels to recent decisions of the Federal Court of Justice.
The Patenting of Graphical User Interfaces
Graphical User Interfaces have become our constant companions in many different areas: mobile telephones, medical equipment and machines in industrial processes are many areas of use. Naturally, this has stimulated an interest in patent protection for graphical user interfaces.
The standard practice of the EPO requires that a claimed subject-matter must solve a technical problem with technical means in a way which is not obvious in order to be patented. According to Art. 52 (2) of the EPC and the established practice of the EPO, the presentation of information, aesthetic creations, programs for computers and business methods as such are not considered to be technical. With regard to the patentability of user interfaces, this means that features of a patent claim which relate to the graphical display of a user interface or information which is displayed to the user via the user interface will possibly be seen as non-technical feature which cannot contribute to an inventive step in accordance with the examination approach of the widely known COMVIK decision T 641/00 of the EPO.
When looking at graphical user interfaces, the particularly relevant question is which criteria does a graphical user interface feature has to fulfil in order to be seen as a technical feature and thereby support the presence of an inventive step. The Boards of Appeal of the EPO have recently commented on the question of the patenting of graphical user interfaces and have worked out some criteria which should facilitate the assessment of which feature of a graphical user interface (if at all) can be seen as “technical feature” in terms of the case-law of the Boards of Appeal.
The user thinks!
Some of the criteria raised by the case law of the EPO concern the question of the extent to which the mental activities of the user conflict with the patentability of graphical user interfaces.
A feature of a graphical user interface, the effect of which can be ascribed solely to the reduction of the cognitive burden of the user, for example by allowing the user to cognitively process the displayed information better, so that he can make faster entries, was classed as a non-technical feature in many Board of Appeal decision (see EPO decisions T 1143/06, T 1741/08, T 1670/07). This decision practice has also led to a change in the guidelines for examination in the EPO (see section G-II, 3.7 of the guidelines for examination in the EPO). The named decisions paved the way for the so-called “broken technical chain fallacy” established by the EPO Boards of Appeal, which is based on the idea that in cases of an improved layout to reduce the cognitive burden of the user, or the fast or accurate reaction of the user by means of an entry, the mental activity of the user is involved and thereby interrupts the “technical chain” of procedures, beginning with the display and ending with the receiving of the input. One technical effect which is possibly linked to improved input depends, according to the Boards of Appeal, on the sole mental activity of the user which, depending on the user, can vary. As a result, the attainment of an allegedly technical goal is a mere subjective viewpoint, so that the definition of a user interface solely with the (subjective) purpose of reducing the cognitive burden of the user cannot be regarded as being technical.
On the other hand, it was clarified in several decisions and examination guidelines that the sole fact that the claimed subject-matter comprises mental activities does not automatically mean that the subject is not technical (T 643/00). Interestingly, it seems that some Boards of Appeal have hinted in more recent decisions that the claiming of an intuitive user interface which supports the user in the operating of the user interface, can have a technical effect (T 1958/13, No. 2.2.5 with reference to T 643/00; T 1715/11, No. 2.3).
Taking the Human by the Hand via the User Interface
One further question which was addressed in the case-law of the EPO Boards of Appeal is which role does the nature or the content of the displayed information play in the assessment of the technicity of the user interface or the information shown there. This question was recently addressed by the decision T 336/14 (Gambro Lundia AB vs. Fresenius Medical Care Deutschland). The decision concerned the appeal proceedings in an opposition regarding a patent, the patented subject-matter of which was a user interface for a dialysis machine. The user interface differed from the prior art in that saved data displayed on a screen (i) comprised the operating instructions to activate the dialysis machine and (ii) two pictograms were shown on the screen upon activating two touch-sensitive buttons which appear next to the operating instructions, whereby the pictograms represent the configurations of the dialysis machines which correlate with the operating instructions (T 336/14 Nr. 1).
In its decision T 336/14, the Board of Appeal 3.5.05 applied a special examination procedure or testing scheme.
First of all, the Board of Appeal approached the question of whether the data shown is so-called “functional data” or “cognitive data”. Functional data is that which shows the inherent technical features of the underlying system in questions, such as information for the synchronisation of coded picture lines (line numbers and addresses) for a corresponding reading apparatus (T 1194/97) or a television signal which reproduces information which show the technical features of the television system (T 163/85). In contrast, cognitive data is aimed directly at the user (the user interface) and is only relevant for same.
In the case of such cognitive data, the next question to answer is whether the relevant features concern “how” or “what” is being displayed, in other words the content of the displayed information. The patent in question concerned cognitive data and its content (i.e. the question of “what” is displayed).
In the following, this article concentrates on the assessment of the technicity of features which refer to the display of cognitive content, in other words “what” is shown.
When assessing whether the displayed cognitive content can be seen as a technical feature, the Board of Appeal concentrated on whether the user interface and the content of the displayed information credibly assist the user in carrying out a technical task by way of a continued or guided human-machine interaction process. In particular, it concerned the question of “why”, in other words “for what purpose” the information was displayed (T 336/14 No. 1.2.4).
In other words, according to the Board of Appeal, to answer the question of whether the displayed cognitive content is to be considered as a technical feature, it must be reviewed whether the displayed information is “technical information” which credibly enables the user to properly operate the underlying technical system and thus has a technical effect. It is particularly relevant to assess whether the displayed cognitive information contains an internal machine condition and requires the user to interact with the machine in a continued or guided way to enable the proper functioning of the machine (T 336/14 Nr. 1.2.4).
Furthermore, in its decision T 336/14 referring to the abovementioned decision T 1741/08, the Board of Appeal pointed out that not everything which supports or can support a technical act features a technical character because of this. In particular, an act which could possibly be performed by a user in reaction to a displayed information concerning the technical mode of operation of the system in question does not lead to the displayed information being a “technical information”. With this appraisal, the decision touches on another aspect of inventive step, namely the requirement that all embodiments which fall under the claimed subject-matter must causally, or at least credibly, solve the technical problem which is to be solved (G 1/03 No. 2.5.2, T 1078/08, T 1019/10, T 5/06, T 380/05, T 929/92, T 668/94). This was also confirmed recently by the Boards of Appeal of the EPO (T 2001/12, T 862/11).
As already mentioned, the decision T 336/14 addressed the question of whether the displayed cognitive content is to be viewed as a technical feature, whereby the Board of Appeal concentrated on “why”, or “for what purpose” the operating guidelines for activating the dialysis machine are shown on the user interface of the dialysis machine together with two pictograms which appear to act as touch-sensitive buttons and which are associated with the operating guidelines. The patent concerned a way of supporting a nurse in starting the dialysis machine in a safe and efficient way by displaying the operating guidelines and the pictograms.
The Board of Appeal found, however, that activating the switch according to the patent claim did not necessarily bring on the change of an internal status of the dialysis machine and the displayed pictograms did not contain any details of the current status of the system. In addition, the patent claim did not even indicate an order in which the buttons or the operating guidelines needed to be used in order to guarantee a proper operation.
As a consequence, the Board of Appeal came to the conclusion that the claimed operating guidelines and the pictograms did not credibly or causally support the user in terms of a continued or guided human-machine interaction. In particular, the Board of Appeal found that the displayed information, if at all, could only help the user to better understand or remember the steps to be carried out to start the dialysis machine and would, therefore, only address the mind of the user.
As a consequence, the distinguishing features of the main request relate to the presentation of information as such, which, according to settled case law of the Board of Appeal, does not support the presence of an inventive step.
In an auxiliary request, an additional distinguishing feature was inserted that a part of the display changes if one of the operating guidelines is carried out. In essence, the purpose of this is to give the user a visual feedback if the user of the dialysis machine ensures that one of the displayed operating guidelines is carried out (T 336/14 No. 3). The Board of Appeal admitted that this visual feedback on the carrying out of one of the operating guidelines referred to an internal state of the machine and would represent a “technical information”. However, the Board of Appeal emphasised that this distinguishing feature (or the entire patent claim) would not necessarily require that carrying out the operating guidelines has to be successful to trigger the visual feedback. In fact, what is being displayed visually is merely the activation of any operating guideline. If and how – in other words how successfully – the activated operating guideline is carried out by the dialysis machine left open by the patent claim, so that a proper functioning of the dialysis machine is not necessarily ensured by the claimed graphical user interface. An inventive step was, therefore, also denied by the Board of Appeal for the auxiliary request.
In the headnote of the decision, the Board of Appeal emphasised that when assessing the inventive step of a claimed subject-matter which comprises technical and non-technical features, in which the cognitive information displayed on the graphical user interface concern the content of the information and not the manner of the display, it must be examined whether the graphical user interface, together with the displayed content, credibly and causally support the user when carrying out a technical act by using a continued or guided human-machine interaction process. To assess this question, one also has to concentrate on the “why”, or “the purpose” of the graphical display.
This decision emphasises that features of a graphical user interface can support an inventive step if they causally or at least sufficiently credibly serve the technical purpose of guaranteeing a proper use of the underlying machine in question by the user.
The same Board of Appeal 3.5.05 made a similar decision previously in T 407/11. In this case, the Board of Appeal found that when assessing the inventive step, only the technical effects which are directly and causally derivable from the claimed distinguishing feature are relevant (T 407/11 No. 2.1.4). Furthermore, the Board of Appeal found in the decision that a technical effect can be seen if it is prevented in a data-processing electronic system that a function called up by a user is, due to his error, either not carried out at all by the system or in a way which is not wanted (T 407/11, No. 2.1.4, 2.1.5). What is interesting is that the Board of Appeal, in its headnote, emphasised that the relevant expert in connection with the provision of operation assistance via a user interface of a computer system is not an expert in software programming or computer engineering as such, rather an expert in user friendliness in the area of human-machine interface and software ergonomics.
As a consequence of T 336/14, the Board of Appeal 3.2.02 decided in T 690/11 that the criteria of T 336/14 would follow the established line of case law of the Boards of Appeal. In that particular case, the Board of Appeal 3.2.02 found that features of a graphical user interface, the aim of which is that a user makes an entry and triggers an internal process of the system in question, and the graphical user interface graphically displays the course of this process, has a technical character (T 690/11, No. 3).
Also shortly after the T 336/14, the Board of Appeal 3.5.05 decided in T 1073/13 again that distinguishing features which graphically display cognitive content and merely have the effect that the user does not have to remember a special sequence for a configuration before carrying out the configuration, is not technical. The Board of Appeal demanded again a credible support for the user when carrying out the configuration of the system in question, for example by displaying the current status of the system within the framework of a continued or guided human-machine interaction process. (T 1073/13, No. 1.1.6).
The decision T 1715/11 of the Board of Appeal 3.2.04, which was made before the decision T 336/14 of the Board of Appeal 3.5.05, did not discuss the issue of the strictly credible or causal connection between the graphical display of information and the achieving of the technical success, it did, however, point out that the layout of the graphical user interface does have a technical effect if it reduces errors of the user in the communication with the machine in question, thereby supporting the communication between human and machine (T 1715/11, No. 3.2, 3.7).
Parallels with Federal Court of Justice Case Law
The above trend of the EPO Boards of Appeal appears to be in harmony with the recent decision of the Federal Court of Justice (X ZR 110/13 – Entsperrbild) on the subject of graphical user interfaces. The Federal Court of Justice states that when examining the inventive step, instructions which concern the conveying of certain content with the aim of influencing the human imagination or comprehension should not be considered.
The matter at the heart of the decision of the Federal Court of Justice concerned a “swipe to unlock” mechanism for mobile telephones. The procedure according to the invention was identified such that the user can unlock the device with a predetermined finger movement on a touch-sensitive display, whereby the device remains locked if the movement does not correspond to the saved specifications. The contact movement also corresponds to a predetermined path on which an image moves in harmony with the contact on the screen. The Federal Court of Justice found that the specification to move an imagein harmony with the contact along a predetermined and shown path on the screen, shows the user the control movement to unlock the functions of the device, which the user carries out by touching the touch-sensitive screen in a particular way, by visually indicating a symbol on the screen that carries out a corresponding movement. The patent claims to show the user optically that he has given the computer an instruction with the movement which can unlock the device, and that the unlocking is actually taking place if the movement of the user corresponds with the requirements of the predetermined movement. The command which lies in the finger movement should, in other words, trigger not only the unlocking, but also a display which symbolises the command and the progress of its execution. This is a technical solution of the technical problem of making the execution of unlocking optically recognisable to the user, thereby increasing the operating safety.
Therefore, the human is – fully in line with a continued and guided human-machine interaction as required by the Boards of Appeal of the EPO – taken by the hand during the unlocking of the device by way of the user interface, and the status of the unlocking is optically displayed.
A series of partly older but hitherto accepted decisions view a technical effect in the mere display of internal statuses of machines (T 115/85, T 362/90, T 599/93 No. 4, T 1073/06 No. 5.4, T 756/06 No. 13, T 1670/07 No. 12, 13; see also EPO RL 2015, G-II, 3.7, 3.7.1). It would appear, however, that the more recent decision T 336/14 no longer concentrates only on the “nature” of the information when classifying displayed cognitive information as “technical information”, for example whether the displayed information refers to an internal technical system status. In fact, it is the “purpose” of the displayed information in the context of the patent claim which is to be focused on. A technical purpose must causally, or at least sufficiently credibly, result from this context.
In this respect, the more recent decisions of the Boards 3.5.05 and 3.5.02 indicate a possible further tightening of the criteria that cognitive information displayed by a user interface must fulfil in order to be treated as a technical feature and relevant for the assessment of the inventive step.