New EPO Guidelines for Examination on the Patenting of Graphical User Interfaces
The European Patent Office (EPO) has completely revised its Guidelines for Examination regarding “presentations of information” and “user interfaces” (EPO GL 2017, G – II, Sections 3.7 and 3.7.1). In large part, these substantial revisions are based on recent decisions by the EPO Boards of Appeal, in particular decision T 336/14, which we already analysed in detail in our B&B Bulletin of December 2016. Based on these recent decisions, the EPO has now more narrowly defined the circumstances in which features of a GUI are considered “technical features” and are, therefore, relevant for the assessment of the inventive step. Even though this topic is not completely settled in the case law of the Boards of Appeal, a general trend appears to emerge at the EPO.
Graphical User Interfaces (GUIs) have become our constant companions in many different areas: mobile telephones, distributed network communications, medical equipment and machines in industrial processes are only some of the many areas of use. Naturally, this has stimulated an increasing interest in patent protection for GUIs, which apparently urged the EPO to revise its Guidelines for Examination on this topic.
The long-established standard practice of the EPO requires that in order to be patented a claimed subject-matter must solve a technical problem with technical means in a way which is not obvious. According to Art. 52 (2) EPC and the established practice of the EPO, the presentation of information, aesthetic creations, programs for computers and business methods are, as such, not considered to be technical.
With regard to the patentability of GUIs, this meant and still means that features of a patent claim which relate to information which is displayed to a user via a GUI are analysed to determine if, in the context of the claimed subject-matter, they contribute to providing a technical effect. If they do not make such a technical contribution, they are not taken into account during the assessment of the inventive step, in accordance with the examination approach of the widely known COMVIK decision T 641/00 of the EPO, and hence cannot support the presence of an inventive step. In the revised Guidelines for Examination, the EPO emphasizes that, during the assessment of the inventive step, the examiner is supposed to assess the context of the claimed subject-matter, the task the user carries out and the actual purpose which is served by the particular presented information.
When looking at GUIs, a particularly relevant question is which are the criteria a GUI-related feature has to fulfil in order to be recognized as a “technical feature” that contributes to the technical effect of the claimed subject matter, so that it is to be taken into account when assessing the inventive step.
“Functional data” vs. “Cognitive data”
First of all, the EPO emphasizes again in the revised Guidelines for Examination that presentation of information in the sense of Article 52 (2) d) EPC is to be understood as the conveying of information to a user, i.e. cognitive data, and is to be distinguished from the technical representations of information directed to a technical system to process, store or transmit that information. Features of data encoding schemes, data structures and electronic communication represent “functional data” and are not regarded presentation of information as such.
Functional data is data which shows the inherent technical features of the underlying system in question, 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 shows the technical features of the television system (T 163/85).
Taking the Human by the Hand via the GUI
In the case of cognitive data, the revised Guidelines for Examination now clearly distinguish two sub-categories of presentation of information, namely (i) whether the relevant features concern “what” (which information) is presented, in other words the content of the information presented, and (ii) “how” (in which manner) the information is presented. However, the revised Guidelines for Examination emphasize also that a presentation of information does not extend to the technical means used for generating such presentation of information.
The decision T 336/14 (Gambro Lundia AB vs. Fresenius Medical Care Deutschland) addressed the question which role the nature or the content of the displayed information plays in the assessment of inventive step of the information presented using a GUI. As already analysed in detail in our B&B Bulletin of December 2016, in decision T 336/14, the Board of Appeal 3.5.05 applied a special examination procedure or testing scheme, whose essence was now incorporated in the revised Guidelines for Examination and should therefore be taken into account when prosecuting corresponding patent applications at the EPO.
The patent in question of T 336/14 concerned cognitive data and its content (i.e. the question of “what” is presented) and not “how” (i.e. in which manner) the information is being presented.
In the headnote of decision T 336/14, the Board of Appeal emphasised that when assessing inventive step of a claim which comprises a mix of technical and non-technical features, in which the cognitive information displayed on the GUI relate to “what” is presented rather than “how” the information is presented, it has to be analysed whether the GUI, together with the content presented, credibly assists the user in performing a technical task (related to “why” that content is presented) by means of a continued and / or guided human-machine interaction process.
In other words and as outlined in our B&B Bulletin of December 2016, according to the Board of Appeal 3.5.05, to answer the question of whether the displayed cognitive content is to be considered a technical feature, it must be assessed whether the information displayed to a user 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 prompts the user to interact with the machine in a continued or guided way to enable the proper functioning of the machine (T 336/14, reasons 1.2.4). The same Board of Appeal 3.5.05 made similar statement in the earlier decision T 407/11.
Following their decision T 336/14, the same Board of Appeal 3.5.05 took a similar position in decision T 1802/13 for an application related to “how”, i.e. in which manner, the information is being presented and not “what”, i.e. which information, is presented. In particular, the Board of Appeal decided in reasons 2.1.5 that, similar to the issue of “what” is presented as decided in T 336/14, regarding the technicality of the manner in which information is presented, the main issue to be established is whether the underlying GUI, together the manner in which cognitive content is presented, credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process (basically being related to the question “for what purpose” the information is presented).
In the recent past, both decisions have been referred to and confirmed by a few other Boards of Appeal and only in a limited number of decisions.
For example, 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 GUI,
the aim of which is that a user makes an entry and triggers an internal process of the system in question, and the GUI graphically displays the course of this process, has a technical character (T 690/11, No. 3).
In its decision T 2461/11 the Board of Appeal 3.4.03 referred to T 1802/11 and considered features relating to enlarging an image of a data setting on a display, maintaining the enlarged image and reducing the enlarged image in dependence of a sensed manipulation of the control by the user as credibly assisting the pilot in performing entry of manually-adjustable data settings in an aircraft cockpit and hence as technical features (T 2461/11, reasons 2.3.4).
The EPO completely revised the above-noted sections on the presentation of information and user interfaces in the Guidelines for Examination based on the two decisions T 336/14 and T 1802/13 only. The revised Guidelines for Examination now state that features defining a presentation of information (i.e. features related to “what” information or “how” information is presented) produces a technical effect if it credibly assists the user in performing a technical task by means of a continued and/or guided human-machine interaction process.
The revised Guidelines for Examination even go slightly beyond the literal statements made in these two decisions by stating that such a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature. This would not be the case if the alleged effect depended on subjective interests or preferences of the user, wherein this latter statement has indeed been stated in several decisions by the Board of Appeal (e.g., T 336/14, T 1802/13, T 1143/06, T 1741/08, T 1670/07).
Fortunately, the EPO seems to agree in the revised Guidelines for Examination that the determination of the extent to which a particular presentation of information may be considered to credibly support the user in performing a technical task is difficult.
In view of this observation, the EPO provides an “advice” to the examiners according to which this determination may be simplified for the examiner during an assessment of inventive step by comparing the claimed subject-matter with the prior art first, thus allowing the determination to be limited to the distinguishing feature. Unfortunately, the EPO included a statement into this “advice” to the examiners according to which this comparison may reveal that the potential support for the performance of the technical task is already achieved in the prior art, with the alleged consequence that the distinguishing features would make no technical contribution.
This “advice” to the examiners in the revised Guidelines for Examination is at least vague and could be interpreted by the examiners as meaning that a distinguishing feature would “become” non-technical, if the technical effect provided by the distinguishing feature (considered in isolation) is already known from the prior art.
Such an interpretation would, however, violate general principles for the assessment of inventive step: Firstly, whether a claimed (distinguishing) feature is technical or not has to be assessed in context of the claimed subject-matter and without considering the prior art. Secondly, the objective technical problem does not have to be a new problem and can even be a mere alternative. That is, if the closest prior art already achieves the technical effect associated with the distinguishing feature, then the objective technical problem may have to be reformulated such that it is less ambitious, but this does not make the distinguishing feature less technical.
Consequently, this “advice” to the examiners in the revised Guidelines for Examination should be taken with care and should be clarified: To be clearly in line with the general principles for the assessment of inventive step, the Guidelines for Examination should be revised to state that the examiner may compare the claimed subject-matter with the prior art first, so as to limit the number of features the technical contribution of which must be analysed. However, once the distinguishing features are identified, the examiner needs to check for each distinguishing feature in consideration of its function in the context of the claimed subject-matter, and without considering the prior art, whether the distinguishing feature makes a technical contribution to solving a technical problem.
Representatives should closely monitor how the examiners use this “advice” in daily practice.
Following the above mentioned general criteria for the assessment whether a feature relating to presentation of information is technical or not and the above “advice” for the examiners, the revised Guidelines for Examination list several examples, largely based on decisions by the EPO Boards of Appeal, where a technical effect for such features was confirmed or denied.
Examples: “What should be presented?”
The revised Guidelines for Examination state that an internal state prevailing in a technical system is an operating mode, a condition or an event which is related to the internal functioning of the system, may dynamically change and is automatically detected. Its presentation typically prompts a user to interact with the system, for example to avoid the technical malfunctions. If the cognitive content of the information presented to the user relates to an internal state prevailing in a system and enables the user in properly operating this technical system, it has a technical effect according to the revised Guidelines for Examination.
It is not explicitly stated in the revised Guidelines for Examination, whether the mere presentation of such an internal state prevailing in a technical system is a technical feature. In this context, it is useful for the applicants and patent proprietors to know that a series of partly older but hitherto accepted decisions view a technical effect in the mere display of internal statuses of apparatuses (T 115/85, T 362/90, T 599/93 reasons 4, T 1073/06 reasons 5.4, T 756/06 reasons 13,
T 1670/07 reasons 12, 13; T 528/07, reasons 5.2). However, the revised Guidelines for Examination now state that features defining user input are more likely to have a technical character than those solely concerning data output and display, because input requires compatibility with the predetermined protocol of the machine, whereas output may be largely dictated by the subjective preference of the user. This seems to imply that, in line with these partly older decisions, the mere presentation of such an internal status prevailing in a technical system could in principle still be considered technical, but with a lower probability. It is therefore advisable to not only include features in an application related to the mere presentation of an internal state prevailing in a technical system, but to also include features related to an interaction between a user and a GUI (e.g. initiating or responding to the presentation of the internal state), such that the combination of the presented information and the interaction with the user credibly assists the user in properly operating the underlying technical system.
The revised Guidelines for Examination further explicitly state that features which specify a mechanism enabling user input, such as entering text, making a selection or submitting a command, is normally considered to make a technical contribution. For example, providing in a GUI an alternative graphical shortcut allowing the user to directly set different processing conditions makes a technical contribution, which the revised Guidelines for Examination seem to have taken from the slightly older but hitherto accepted decision T 1188/04 by the Board of Appeal 3.5.01.
In a further example not discussed in the revised Guidelines for Examination, the Board of Appeal 3.5.05 found in T 407/11, related to a user calling a function in a data-processing electronic system and providing an error message to the user in response, that a technical effect can be seen if it is prevented in the data-processing electronic system that the function called up by the 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, reasons 2.1.4, 2.1.5).
The revised Guidelines for Examination also state that performance-oriented improvements to the detection of user input, such as allowing faster or more accurate gesture recognition or reducing the processing load of the device when performing the recognition, do make a technical contribution. However, where the actual achievement of effects (e.g. simplifying the user’s actions or providing more user–convenient input functions) depends exclusively on subjective user abilities, such effects may not form the basis of an objective technical problem to be solved.
However, the revised Guidelines for Examination also state that static or predetermined information about technical properties or potential states of the machine, or specifications of the device operating instructions do not qualify as an internal state prevailing in the device. If the presentation of static or predetermined information merely has the effect of helping the user with the non-technical task preceding the technical task, it does not make a technical contribution. For example, the effect that the user is not required to know or memorize a sequence of buttons to be operated prior to configuring a device is not a technical effect, which is also taken from T 336/14.
The revised Guidelines for Examination also mention that information representing a state of a non-technical application run on a computer system, such as a casino game, a business process or an abstract simulation model, would constitute non-technical information exclusively aimed at the user for his subjective evaluation or non-technical decision–making and would not be directly linked to a technical task, even if ultimately states of processors or memories are modified, which seems to be taken from T 336/14, T 1073/06, T 1704/06 and T 528/07.
Examples: “How should it be presented?”
A feature in this sub–category of presentation of information specifies a form or arrangement in which, or a timing at which, information is conveyed to the user. The revised Guidelines for Examination state that features defining a visualization of information in a particular diagram or layout would normally not be considered to make a technical contribution, even if the diagram or layout arguably conveys information in a way which a viewer may intuitively regard as particular appealing, lucid or logical.
Dealing with limited available screen space would be a part of designing presentations of information for human viewing and would therefore not be an indication of a technical effect per se, according to the revised Guidelines for Examination. For example, the general idea of giving an overview of the plurality of images and the limited display area or eliminating whitespace between the windowpanes would only be a matter of layout design and would not involve technical considerations. The EPO seems to base such statements on decisions like T 1562/11.
However, the revised Guidelines for Examination continue stating that features allowing the user to search and retrieve images stored in a image processing apparatus in a more efficient manner may involve technical considerations, which is taken from the slightly older but hitherto accepted decision T 643/00. Furthermore, features related to resolving conflicting technical requirements in a video game may be technical, which is based on T 928/03. Also, the visual aid for the surgeon allowing the surgeon to position an implant more precisely is considered to provide a technical effect, according to the revised Guidelines for Examination.
The revised Guidelines for Examination also now address effects relying on human physiology. When the manner of presenting information produces in the mind of the user an effect which does not depend on psychological or other subjective factors but on biophysical parameters, which are based on human physiology and can be precisely defined, that effect would qualify as a technical effect. How close the confirmation and the denial of a technical effect is in this area, is shown by the following examples given in the revised Guidelines for Examination. Displaying a notification on one of a plurality of computer screens near the user’s current visual focus of attention would have an effect that it is more or less guaranteed to be seen immediately compared to an arbitrary placement on one of the screens. In contrast, showing only urgent notifications compared to all notifications would, however, only be based on psychological factors and would therefore not make a technical contribution. Minimizing information overload and distraction would not be considered to qualify as a technical effect, which is taken from T 862/10. However, displaying a stream of images in which the parameters for delay and change in the content between successive images are computed on the basis of physical properties of human visual perception in order to achieve a smooth transition would be considered to make a technical contribution, which is based on T 509/07.
The revised Guidelines for Examination continue stating that, irrespective of whether the feature related to the presenting of information falls within the “what” or “how” sub-categories, the mere fact that mental activities are involved would not necessarily qualify the subject-matter non-technical, which is based on T 643/00. For example, the user may evaluate the present information in order to locate and objectively recognize a desired information. This mental evaluation may be considered an intermediate step steering a subsequent process and may therefore form an integral part of the solution to a technical problem. In particular, if the GUI provides a mechanism for inputting a selection which would not be possible if the information was not presented in the claimed particular manner, then a technical effect would be present. On the other hand, if the choice or layout of information presented is exclusively aimed at the human mind, in particular to help the user to take a non-technical decision, such as which product to buy based on a diagram showing properties of products, then no technical contribution would be made.
The EPO takes a revised view on “presentation of information” and “user interfaces” in the current version of the Guidelines for Examination. When assessing inventive step of a claim which comprises a feature in which cognitive information is conveyed to a user via a GUI, in the EPO’s view it has to be analysed whether the GUI, together with the content presented or the manner of presentation, credibly assists the user in performing a technical task by means of a continued and / or guided human-machine interaction process, which is related to “why” or “for what purpose” that information is presented. The revised Guidelines for Examination state that such a technical effect would be considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature.
If the cognitive content of the information presented to the user relates to an internal state prevailing in a system and enables the user to properly operate this technical system, it has a technical effect. It appears that, in line with partly older but hitherto accepted decisions, the mere presentation of such an internal status prevailing in a technical system may in principle still be considered technical, but with a lower probability of success. It is therefore advisable to not only include features in an application related to the mere presentation of an internal state prevailing in a technical system, but to also include features related to an interaction between a user and a GUI, such that the combination of the presented information and the interaction with the user credibly assists the user in properly operating the underlying technical system.
As suspected in our earlier analysis in the December 2016 Bulletin, the more recent decisions of the Boards of Appeal 3.5.05 indicate a further tightening of the criteria applied by the EPO that cognitive information conveyed to a user must fulfil in order to be treated as a technical feature and relevant for the assessment of the inventive step.