Tuesday, 5 January 2016

T 336/14 - Providing instructions with a device

No instructions were provided with this blood orange

This opposition appeal concerns a blood treatment machine which is distinguished from the prior art by displaying "operating instructions for readying the machine for use" and at least two "pictographs which represent configurations of the machine correlated to the operating instructions".

These features are on the one hand presentation of information but on the other hand are related to technical interaction with a machine. Unfortunately for the proprietor these technical aspects do not save his claim. 

I find the discussion also interesting because the claim is close to claim 3 of EQE Paper C of 2008 (pdf). Already then candidates who wanted to become an attorney had to argue that providing novel instructions together with a device does not render the claim inventive. Nevertheless, so many years later the discussion of this problem by the board shows that this question is not as straightforward as might at first glance seem.




Reasons for the Decision

1. MAIN REQUEST

Claim 1 of this request is identical to claim 1 of the main request as maintained by the opposition division, and comprises the following features (as enumerated by the appellant and the respondent):

1.0) A user interface for an extracorporeal blood treatment machine,
1.1) the user interface comprising at least one touch screen,
1.2) at least one memory containing at least two images,
1.3) at least a controller programmed for displaying on a screen of the touch screen at least one display,
1.4) at least two distinct areas being included in the at least one display;
1.5) a first area of the two distinct areas exhibiting at least two touch keys;
1.6) wherein the controller is further programmed for:
- detecting activation of the at least two touch keys;
1.7) - displaying in a second area of the at least two areas of the at least one display, a first of the at least two images, when a first of the at least two touch keys is activated;
1.8) - displaying in the second area of the at least two areas of the at least one display, a second of the at least two images, when a second of the at least two touch keys is activated;
1.9) wherein the memory comprises a plurality of data relating to the machine;
1.10) the controller being programmed to display the data on the first area of the at least one display;
1.11) each item of the data being displayed in a visually associated position to a touch key of the at least two touch keys;
1.12) the plurality of data comprising operating instructions for readying the machine for use;
1.13) the at least two images being pictographs which represent configurations of the machine correlated to the operating instructions.

It was undisputed during the appeal proceedings that document D2, concerned - like the present invention - with pre-treatment preparation steps for a blood treatment machine, represents the closest prior art for the claimed subject-matter. Whilst in the opposition proceedings (see e.g. the notice of opposition, section V.1) the appellant referred mainly to the embodiment of D2 relating to Figures 30A to 30L (corresponding to the machine initialisation procedure, including visual operating instructions) as a basis for attacking the patent's subject-matter, in the appeal proceedings it relied essentially on the embodiment relating to Figures 32A to 32E of D2 (corresponding to the machine set-up procedure). The board likewise regards the latter embodiment as a suitable starting point for assessing the patentability of the present subject-matter.

1.1 Article 54 EPC: novelty

The board judges that claim 1 of the main request meets the requirements of Article 54 EPC, for the following reasons:

1.1.1 It was common ground that D2 anticipates features 1.0) to 1.4) of claim 1.

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1.1.4 As to features 1.12) and 1.13), Figures 32A to 32E of D2 merely exhibit that, upon activating one of the tabs identified by the tab labels in the tabbed area, distinct pictographs are automatically displayed in the context area of display 54, representing configurations of the machine correlated to the corresponding tab labels. Therefore, the board concurs with the appellant and the respondent that the embodiment relating to Figures 32A to 32E of D2 fails to directly and unambiguously disclose features 1.12) and 1.13) of present claim 1, namely that the data displayed in the display's first area comprises operating instructions for readying the machine for use and that the images displayed in the display's second area are pictographs which represent configurations of the machine correlated to the operating instructions. Thus, distinguishing features 1.12) and 1.13) correspond to different contents of the information shown in the first area, namely "operating instructions for readying the machine for use" rather than tab identifiers for controlling the machine's configuration parameters as in D2.

The question which arises next is whether or not those distinguishing features constitute presentations of information as such within the meaning of Article 52(2)(d) and (3) EPC and thus are non-technical features which do not contribute to the technical character of claim 1. The board is aware of decisions which propose the concept of "technical novelty" (see e.g. G 2/88, OJ EPO 1990, 93, reasons 7; T 154/04, OJ EPO 2008, 46, reasons 14; T 619/98 of 23 April 1999, reasons 4.8). However, in the sequel, it follows - in accordance with the appellant's line of attack - the well-established approach of treating potentially non-technical features under the umbrella of inventive step (see e.g. T 641/00, OJ EPO 2003, 352, reasons 4).

1.1.5 Accordingly, the subject-matter of claim 1 of the main request is held to be novel over D2 (Article 54 EPC).

1.2 Article 56 EPC: inventive step

The next issue to be resolved is whether distinguishing features 1.12) and 1.13) may render the subject-matter of claim 1 inventive over the corresponding embodiment of D2. The appellant and the respondent quoted a large number of decisions (cf. points III, IV and VIII above) regarding the assessment of inventive step, in particular the matter of presentations of information as such with respect to graphical user interfaces. The board finds it expedient to first look at the factual and legal particularities of those decisions.

1.2.1 Discussion of the cited decisions of the Boards of Appeal

The decisions cited, as far as relevant for the present case, can be summarised as follows:

In case T 599/93 of 4 October 1996, the underlying GUI was configured to simultaneously display multiple images via separate windows divided by demarcation lines to ease the user's effort in evaluating images and to raise his attention to specific image contents via e.g. different colours or brightness. The contribution of the claimed subject-matter over the prior art was to allow the user to dynamically move the demarcation lines via a window setting mark. The deciding board held that the information displayed by the respective windows did not e.g. convey any operating states of the computer system and thus had no technical character (cf. reasons 4).

In case T 1194/97 (OJ EPO 2000, 525), a picture retrieval system was configured to display a coded picture composed of consecutive picture lines being recorded on a record carrier. The deciding board considered it "appropriate to distinguish ... between data which encodes cognitive content, eg a picture, in a standard manner and functional data defined in terms which inherently comprise the technical features of the system ... in which the record carrier is operative" (cf. reasons 3.3).

In case T 1073/06 of 23 November 2010, the underlying GUI was configured, upon user input, to display objects of a simulation model, including graphical link representations to improve the ease of a user's comprehension of the model. The contribution of the claimed subject-matter to the prior art was related to the utilisation of association data stored in the memory to cause the link between the objects in the simulation model to be displayed with the associated graphical link representation. The deciding board held that "an improvement in the comprehension of a model is a purely mental effect, so that the problem solved is not seen as being technical ... The claimed 'graphical link representations' relate to the state of the simulation model, rather than to the state of the claimed simulation apparatus, and thus constitute presentations of information and are therefore also non-technical" (cf. reasons 5.3 and 5.4).

In case T 1704/06 of 14 December 2007, the GUI of a casino game was configured, upon user input, to display the players' betting and total payout data to verify the payout calculations. The deciding board held that verifying the croupier's calculations was "clearly not a technical issue but a matter of trust in the croupier (or the lack of it)" (cf. reasons 2.2, third paragraph).

Lastly, in case T 528/07 of 27 April 2010, the underlying GUI was configured, upon user input, to display business opportunity information with communication channels appearing as boxes on the display screen to facilitate the exchange of business data. The deciding board held that business opportunity data "are meaningful only to the human mind" and that the channels relate to "the manner information is displayed, something which is normally regarded as
non-technical" (cf. reasons 5.4 and 6.1).

1.2.2 At the outset of its inventive-step analysis, this board would first like to recall that features relating to subject-matter excluded under Article 52(2) EPC, such as "presentations of information", may only contribute to an inventive step if they bring about an overall technical effect, i.e. if they contribute to the technical character of the claim by interacting with its technical features to solve a technical problem. Otherwise, they are to be disregarded in the assessment of inventiveness (see e.g. T 641/00, first headnote and reasons 6; T 154/04, reasons 5(F); T 1143/06 of 1 April 2009, reasons 3.4). This is, in principle, also applied in prominent national decisions of the German Federal Court of Justice (BGH) concerned with the matter of "presentations of information" (see e.g. BGH, X ZR 3/12, GRUR 2013, 275 - Routenplanung, reasons III.2; BGH, X ZR 27/12, GRUR 2013, 909 - Fahrzeugnavigationssystem, reasons III.2) and the Court of Appeal of England and Wales dealing with "programs for computers" (see Court of Appeal decision of 8 October 2008 - Symbian Ltd v. Comptroller General of Patents [2008] EWCA Civ 1066, point 15).

In this regard, the respondent, referring to T 119/88 (OJ EPO 1990, 395, reasons 4.1), is right in saying that, in the assessment of whether or not a feature provides a technical contribution, the feature shall not be taken by itself, but its technical character shall be decided by the effect it brings about after being added to an object which did not comprise that feature before. Therefore, the board has to determine whether or not the distinguishing features of claim 1 bring about a credible technical effect and hence solve a technical problem.

1.2.3 It is immediately apparent that the information presented according to features 1.12) and 1.13) of claim 1, i.e. the operating instructions and the corresponding pictographs, are cognitive rather than functional data in the sense of T 1194/97, since they address directly the user of the blood treatment machine and are consequently meaningful only to a human mind. It is also evident that, contrary to the respondent's view, the distinguishing features are related to the content of the information, i.e. to "what" is presented, rather than to the manner in which the information is presented, i.e. to "how". The details of "how", i.e. displaying pictographs in the second area correlated to the visually associated machine-related data (i.e. tab labels) displayed in the first area, are already known from D2 (see point 1.1.41.1.4 above). Accordingly, those decisions which are related predominantly to the manner of presenting specific content, are of little relevance for ruling on the present case (i.e. decisions T 643/00, T 928/03, T 1143/06, T 1749/06 and T 1741/08). As to the applicability of decisions T 643/00 and T 928/03 to the present case, the board refers to point 1.2.61.2.6 below.

1.2.4 The next question to be answered is whether the underlying user interface and the content presented credibly assist the user in performing a technical task by means of a continued and guided human-machine interaction process. So, this question is basically related to "why" (i.e. "for what purpose") the content is presented.

To this end, as implied e.g. by decisions T 599/93 (reasons 4) and T 1073/06 (reasons 5.4), it is relevant to determine whether the cognitive information presented constitutes an operation state, a condition or an event internal to the underlying technical system, prompting the system user to interact with it in a continued and/or guided way for enabling its proper functioning, within the meaning of T 115/85 (OJ EPO 1990, 30, headnote I), T 362/90 of 13 October 1992 (see reasons 4.1) and T 887/92 of 19 April 1994 (see reasons 3.1), or, whether it represents a state of a non-technical application run on that technical system (e.g. the state of a simulation model as in T 1073/06, reasons 5.4; betting states in a casino game as in T 1704/06, reasons 2.2; business conditions as in T 528/07, reasons 5.4). In other words, it has to be established whether the information presented constitutes "technical information", which credibly enables the user to properly operate the underlying technical system and thus has a technical effect, or rather "non-technical information", which is exclusively aimed at the mental activities of the system user as the final addressee.

1.2.5 In the present case, the operating instructions (and the corresponding pictographs) may admittedly somehow support the user in operating the underlying technical device, namely the blood treatment machine. Hence, in a very broad sense, those data could at least linguistically be construed as "technical information", as the respondent suggested. However, not everything that supports a technical task has itself a technical character (cf. T 1741/08, reasons 2.1.12). Rather, the information of features 1.12) and 1.13) is evidently not related at all to any internal system state concerning the proper functioning of the underlying machine in the sense of T 115/85, let alone to a desirable or valid state within the meaning of T 362/90 or T 887/92. Thus, in accordance with T 1143/06 (see reasons 3.4), making reference to T 619/98, an action (possibly) performed by a user in response to a message concerning the technical functioning of an apparatus does not necessarily render technical the information conveyed. The board also agrees with the appellant (referring to T 1143/06, reasons 5.2) that the mere use of an electronic screen, instead of a piece of paper, for conveying information to the user does not make the information displayed more technical, so that the claimed display of operating instructions could well, without changing the resulting overall effect, be replaced with a technical manual on paper through which the readers may flip as they please.

As to the "why" issue, the respondent argued at the oral proceedings before the board that the technical task underlying claim 1 was to "help a nurse in setting up the blood treatment machine in a safe and efficient way". This was done by providing "enhanced information" according to features 1.12) and 1.13) on a small-size display screen, referring to page 16, second paragraph of the description as originally filed ("In the illustrated embodiment, in which the touch-screen is 12 inches with 800x600 pixel, the resolution of the second area 162 of the screen, which ... occupies an area of 250*405 pixel, is about 83 pixels per inch"). In that context, the board would first like to point out that claim 1 in general and its distinguishing features in particular are not limited to any size of the display screen or to any resolution of the content presented. Furthermore, the board notes that the content presented, i.e. operating instructions (and the corresponding pictographs), constitutes pre-stored static information according to the present invention. Hence, neither is the selection of any operating instruction by a user activating the corresponding touch key conditional on any instant internal state of the blood treatment machine, nor does the automated display of the respective pictograph provide any details on the current operating state of the machine. Since, according to the wording of claim 1, the user may activate any touch key associated with any operating instruction at any time, there is even no temporal order to be observed with regard to those instructions, paving the way for any type of misuse on the part of the user and resulting maloperation of the machine, contrary to the alleged aim of a safe and efficient machine set-up.

As a consequence, the information provided according to features 1.12) and 1.13) cannot credibly support a continued and guided human-machine interaction process. Thus, it cannot assist the user in performing the above-mentioned technical task. The board concludes that displaying that information may, at most, aid the user in better comprehending and/or memorising the steps to be taken for setting up the blood treatment machine or, as the respondent put it, facilitate understanding of the steps required for proper machine preparation, minimise errors of interpretation or improve the "average user's" intelligibility about what he is supposed to do during the various machine set-up phases. Hence, it only addresses the human mental process of an "average user", however the latter is supposed to be defined based on personal skills and preferences (see e.g. T 407/11 of 10 April 2014, reasons 2.1.4). Contrary to the respondent's view, this must be considered a non-technical effect.

In that respect, the board cannot follow the logic of the decision under appeal, according to which the distinguishing features are not non-technical, apparently for the sole reason that the corresponding machine's memory storing the operating instructions to prepare the machine for use was a "technical entity" and was "technically changed by entering said specific data" (cf. appealed decision, section 13.1). But this "phenomenon" regarding a computer memory would certainly also hold true for entering, for example, purely business-related data into that memory, which would not however bring about a technical effect other than storing that non-technical data by technical means. It therefore appears to the board that the above reasoning of the opposition division is more concerned with the presence of an "invention" within the meaning of Article 52(2) and (3) EPC rather than with detecting non-technical features within the framework of assessing inventive step under Article 56 EPC (see e.g. Guidelines for Examination in the European Patent Office, September 2013, G-II, 2 and G-VII, 5.4).

Hence, distinguishing features 1.12) and 1.13) constitute presentations of information as such, which, according to the established jurisprudence of the Boards of Appeal, cannot be taken into account in the assessment of inventiveness.

1.2.6 At the oral proceedings before the board, the respondent cited and discussed in particular decisions T 643/00 and T 928/03 to underpin the technicality of features 1.12) and 1.13) and the presence of inventive step of claim 1.

In case T 643/00 of 16 October 2003, the underlying GUI was configured, upon a user instruction, to simultaneously display hierarchically encoded image data in a side-by-side manner at a low resolution to make the search process easier for the user. The distinguishing features of the corresponding independent claims were considered to relate essentially to resolution-based image arrangements in separate portions of the display. The objective technical problem was seen as "providing a technical tool for efficient search, retrieval and evaluation of images stored in an image processing apparatus" (cf. reasons 14). Based on that, and in view of the available prior art, the presence of inventive step was acknowledged.

In case T 928/03 of 2 June 2006, the GUI of an interactive video soccer game was configured to display various guide marks to draw the user's attention to different (concealed) points of interest of the display screen. The decisive distinguishing features of the independent claims were considered to consist in displaying pass guide marks at predetermined locations of the screen so as to properly indicate the direction in which the game medium (i.e. ball) is to be passed by the active soccer player. The objective technical problem was to resolve conflicting technical requirements, namely "[o]n the one hand, a portion of an image is desired to be displayed on a relatively large scale (e.g. zoom in); on the other hand, the display area of the screen may then be too small to show a complete zone of interest" (cf. reasons 4.3). In view of the above distinguishing feature and the available prior art, the deciding board acknowledged the presence of inventive step.

As regards the interpretation of those decisions, the board fully agrees that the mere fact that mental activities on the part of the user are involved does not necessarily qualify subject-matter as
non-technical. It is also true that the claims underlying those cases do indeed solve technical problems. However, the solution according to present claim 1 is not directed to resolution-based image arrangements (as in T 643/00) or to displaying guide marks at certain locations of the screen (as in T 928/03). In particular, the distinguishing features established in those cases, unlike features 1.12) and 1.13) of present claim 1, are related to "how" something is presented rather than "what" is presented (see also point 1.2.31.2.3 above). Neither are distinguishing features 1.12) and 1.13) intended to solve the problem of an efficient search, retrieval and evaluation of images or resolving conflicting requirements with regard to the desired size of the displayed area of interest. Thus, in view of those factual differences alone, cited decisions T 643/00 and T 928/03 are not considered to be applicable to the present case. Moreover, the board is not persuaded by the respondent's argument that the data structure underlying features 1.10) to 1.13) involved an inventive step, since such a visualised data structure is already disclosed in D2 (see e.g. Figure 32A), as the appellant rightly argued.

1.2.7 In view of the foregoing, the board holds that the subject-matter of claim 1 of the main request does not involve an inventive step having regard to D2.

1.3 In conclusion, the main request is not allowable under Article 56 EPC.

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This decision T 0336/14 (pdf) has European Case Law Identifier: ECLI:EP:BA:2015:T033614.20150902. The file wrapper can be found here. Photo "Blood orange“ by Nick Saltmarsh obtained via Flickr.  Licenced under CC BY 2.0 (no changes made).

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