Friday, 5 February 2016

T 339/13 A technical effect of interaction with a virtual pet

The patent application of the appellant (applicant) relates to a virtual pet. One can consider a virtual pet as a sort of game. Can this invention involve a technical effect? In this decision the Board of Appeal analyzed whether a feature of the main request and of the auxiliary request is technical. The feature relates to providing haptic feedback to the user. In the main request the haptic feedback is generated on basis of a simulated "biological state" or "health state" of the virtual pet. In the auxiliary request the haptic feedback was generated as a (direct) response to input provided by the user. The feature of the auxiliary request is a sort of simulation of the real behavior of a pet that is happy at the moment in time that the owner interacts with the pet. This case shows that in certain cases providing haptic feedback to the user of a virtual pet may be technical and that the technicality of the feature strongly depends on the parameters that determine the haptic feedback.

Summary of Facts and Submissions

I. The appeal lies against the decision of the examining division,


Reasons for the Decision


The invention

4. The application relates to what is referred to as a "vir­­tual pet". It is disclosed that a virtual pet could be "any simulated creature or character, which may or may not have a 'real-life' counterpart" (page 1, lines 7-8 and 21-23). As a specific example of a pet which does, a cat is disclosed (see page 9, line 16).

4.1 In general, the user ("owner") of a virtual pet is meant to interact with it in a way which resembles the inter­action with a real pet. For example, if the vir­tual pet signals that it is "hungry", the owner is supposed to "feed" it and make it "happy" (see e.g. page 5, lines 5-8, and page 9, lines 14-17). The vir­tual pet provides feedback, for instance in the form of visual or audio effects (page 3, lines 11-13).

4.2 The application states that the feedback from the vir­tual pet relates to its "bio­logical status" and explains that this is to be construed broadly as its "state of being", such as its "health or emotional state" (see page 2, lines 22-25).

4.3 The virtual pet is "simulated" by a suitable software application, which may be part of a stand-alone toy (such as those known as "Tamagotchi"; see page 1, lines 8-10) or other hand-held device (page 7, lines 29-31), or be executed remotely on a network resource (see page 2, line 29, to page 3, line 1; and the reference to "" on page 8, lines 18-20). In the latter case, the feedback from the virtual pet is communicated to some "local device for interaction with the user" (see page 3, lines 1-3, and page 7, lines 18-20).

4.4 The application is specifically concerned with a vir­tual pet which is capable of giving "haptic feedback" - ex­plained as "any type of force feedback, such as tac­tile or kinesthetic feedback" (see page 4, lines 26-30) - to produce, for instance, tactile sensations, such as vi­bra­­tions or pulses (see page 8, line 27).

The prior art


Claim interpretation

7. The claimed invention is directed at the production of a haptic effect as feedback on the "biological sta­tus" of a "virtual pet" and, more specifically, on its "health state". It is evident that a vir­tu­al pet has neither a "bio­lo­gical status" nor a "health state" in the literal sense of these terms and that both terms can only refer to pro­per­ties of a model, in particular a software pro­gram meant to evoke the illusion of a real pet. The board therefore takes the terms "biologi­cal status" and "health state" to be metapho­rical ones referring to the perception of a human observer in view of their expec­tations about the beha­vi­or of a real pet, especially a living animal. In technical terms, how­ever, both are essentially unde­fined para­meters of the in­ter­nal state of the vir­tual pet software or de­vice.

8. The claims refer to the "biological status having a haptic effect associated therewith" (emphasis by the board). The board takes this to refer to an association chosen by the toy designer which per se does not imply any realism.

9. It is stated in the description that the term "haptic effect" should be "construed broadly as encompassing any type of force feedback, such as tactile or kines­thetic feedback, that is deemed appropriate for convey­ing a particular bio­lo­gical status of the virtual pet" (page 4, lines 26-30). Notwithstanding this statement, however, the term "hap­tic effect" must, in the board's understanding, be one which is meant to be felt rather than seen and which can be identified by touch rather than by sight. Accor­ding­ly, the "user-interface object" specified in the claims is meant to be held or touched by the user so as to feel the ­­­­haptic effect produced by the object. On the other hand, any part of the toy in question which the user is meant to touch or hold qua­lifies as the claimed user-interface object, in­cluding, for instance, the casing of a hand-held de­vice.

10. In summary, the board construes claim 1 of the main re­quest as specifying a method of out­putting, through some sort of "user-interface" and based on some signal meant to represent the pet's inter­nal state, a "haptic sensa­tion" which is selected to represent that state.

11. Beyond that, claims 1 and 8 of the auxiliary request specify a physical interaction between the user and a device, according to which the device responds with a periodic vibration to the user moving a cursor back and forth over the display of the virtual pet.

Inventive step

12. The decision under appeal assessed in­ventive step starting from D1, and the board agrees that this is a suitable choice. As explained above (point 10), the board considers that the movements of eyes, mouth or limbs of the virtual electronic pet accor­ding to D1 (see column 7, line 66, to column 8, line 10; figure 11, item 510) do not qualify as haptic feedback. Instead of a vir­tual electronic pet which the user is not supposed to handle, the board considers that the starting point for the assessment of inventive step must rather be a device which the user is supposed to hold. In D1, this is, in particular, the hand-held de­vice display­ing the virtual pet according to figure 9.

Main request

13. D1 discloses a method and apparatus for providing feed­back to a user interacting with a virtual pet, the feed­back relating to the virtual pet being "hungry, bored, dirty, sick, bad or tired" (see column 1, lines 18-21, and co­lumn 3, lines 29-31). At least "hungry", "sick" and "tired" indicate "bio­logical status" of the virtual pet, when broadly con­strued as explained above, and at least one of them ("sick") even specifically relates to the "health state" of the virtual pet.

14. Claim 1 of the main request thus differs from D1 in that it relates to a virtual pet
(a) being equipped to provide haptic feedback, and
(b) providing a "pulsing sensation, wherein the rate or magnitude of the pulsing sensation indicates the health state of the virtual pet".

15. As regards feature (a), the board takes the view that it is well-known in the art (see D2) to use haptic feed­back in com­puter games so as to increase the player's perception of interacting with the "real thing".

15.1 Even though the par­ticular games and game situations dis­cussed in D2 do not include virtual pets, the board is of the opinion that the skilled person would con­si­der, without exercising an inventive step, incor­po­ra­ting a haptic feedback assembly into other game devices simp­ly in order to increase the variety of feedback modali­ties available to the interface de­sig­ner (see D2, column 1, lines 58-59).

15.2 The appellant argued during oral proceedings that the haptic feedback according to D2 is limited to periphe­ral user interface "objects" which users are to grasp, such as joysticks (see column 1, lines 41-44; column 1, lines 19-21; column 3, lines 50-52) and that the hand-held de­vice of D2 does not provide or easily lend itself to the incorporation of such components. The board, in contrast to the appellant, cannot see any technical difficulty that would prevent the skilled person from extending the device of D2 by adding a periphe­ral interface object such as, say, a stylus. More than that, however, the board con­si­ders that the entire ca­sing of the hand-held device can easily, and obviously so, serve as the claimed user-in­terface object to which the haptic effect is "out­put".

15.3 Therefore, the board concludes that the provision of hap­tic feedback in a hand-held virtual pet such as that of D1 is, in itself, insufficient to establish an in­ven­tive step.

16. As regards feature (b), the appellant argued in its grounds of appeal (page 4, point 5) that it "enhances the realism of the user's re­la­tionship" or interaction "with the virtual pet" and, during oral proceedings, argued that it increased the players' "engagement" with their virtual pets.

16.1 The board considers that these problems are not technical, nor are they necessarily always solved, so that they are unsuitable for characterizing a technical effect achieved by fea­ture (b).

16.2 Whether players can be said to "engage" more in a given game will depend, inter alia, on how interesting enter­taining or otherwise attractive the game appears. This however depends on an entirely subjective assess­ment by players. Therefore, whether players find a game more in­teresting, entertaining or attractive does not, in the board's judgment, constitute a technical effect of a new game or game device.

16.3 A haptic sen­sa­tion generated in a game context might, in the board's view, be claimed to be "realistic" when it is derived from and is physically comparable to hap­tic sensations that arise in the real situ­ation. In the pre­sent case however, the claims do not set out the spe­­ci­fic phe­no­menon that the claimed "pul­sing sen­sa­tion" is to mi­mic, so that it is impossible to assess whether an increased perception of "realism" is actu­ally achieved by the claimed in­vention in this res­pect. Even on the under­standing that the pulsing sensa­tion is meant to con­vey infor­mation about the pet's "health state" by evoking the perception of a heart beat, the board re­mains uncon­vinced, inter alia because the claimed inven­tion does not explain how "rate or magni­tude of the pul­sing sen­sation" is meant to corre­late with the percep­tion of health and thus does not allow an assessment of whether the claimed inven­tion could be said to evoke that perception in users in a reliable and repro­ducible manner. Therefore, the subject-matter of the claims of the main re­quest does not realize the alleged increased "realism".

17. In the board's judgment, therefore, the claims of the main request do not go beyond specifying the use of a known form of haptic feedback in a virtual electronic pet such as that known from D1, which, as argued above, the board considers to be obvious in the light of D2, and therefore do not involve an inventive step in the sense of Article 56 EPC 1973.

Auxiliary request

18. The independent claims of the auxiliary request speci­fy, in addition to those of the main request, that the user interacting with the virtual electronic pet moves a cur­sor back and forth over the display of the virtual pet and, in response to this movement and varying with it, receives as haptic sensation a periodic vibration. The claim further specifies that the virtual pet in question is meant to "be" a cat and the haptic feedback to evoke a "purring sensation".

18.1 This interaction is modelled on a real inter­action of an owner with an actual pet, more specifically on the response of a cat to its owner petting it. From this per­spective, the board accepts the appellant's argument that the invention increases the similarity between the physical interaction between a user and its toy, the virtual pet, with that between an owner and his/her real pet.

18.2 The board notes that the owner of a toy must be willing to accept the toy's behaviour as real. This applies to a virtual pet just as well as to other toys such as, for instance, a doll equipped with means to "speak" or to move its eyelids. The board agrees with the exa­mi­ning divi­sion that the "increased realism" cannot be quantified, let alone measured, and considers that this makes it diffi­cult in general to assess whether the goal of in­creased realism is actually achieved. How­ever, the board accepts that it would, in individual cases, be possible to demon­strate whether this goal is achieved. In this regard, the board considers that pro­ducing a toy that mimics reality is not a "simulation" in the same sense of this term used in science and en­gi­nee­ring. In the board's view, less is required for a toy to be perceived as real, or to resemble a real ob­ject, than from a simulation in science, manufactu­ring or system control to achieve its technical pur­pose. Ha­ving said that, the board is satisfied that the user of the claimed method and apparatus has a suffi­ciently re­liable and re­pro­ducible perception of physi­cally inter­acting with a real pet - if only in very ge­neral terms, given the breadth of the claim language and the lack of detail in the description.

18.3 The board accepts as a technical problem in the context of virtual pets that of achieving the reliable and re­pro­­ducible perception of a physical interaction with the real pet. More­over, the board finds that the in­ven­tion solves this prob­lem with technical means, more spe­­ci­fi­cally in terms of techni­cal features of the de­vice in­terface, namely a re­cipro­cati­ng cursor movement and hap­tic feedback.

19. Returning to D1, the board notes that D1, apart from not disclosing any haptic feedback, also does not dis­close any direct interaction between the user and the dis­played pet in a way physically resembling an in­ter­action with a real pet. D2, while disclosing the use of haptic feedback in the context of computer games in ge­neral, does not dis­close its use in the context of vir­tual pets and therefore, in the board's view, does not suggest the specifically claimed interaction between the user and the virtual pet.

20. Therefore, the board concludes that the subject-matter of claims 1 and 8 of the auxiliary request involves the required inventive step over D1 and D2, either separa­tely or in combination.

Reimbursement of the appeal fee under Rule 103(1)a) EPC



For these reasons it is decided that:
1. The case is remitted to the examining division, with the order to grant a European patent with the following documents:
claims, no.
1-13 according to the auxiliary request dated 17 November 2015;
description pages
1-5, 7, 8, and 10-12 as published,
6 and 9 dated 17 November 2015,
drawings, sheets
1/7-7/7 as published.
2. The request for reimbursement of the appeal fee is refused.

This decision T 339/13 (pdf) has European Case Law Identifier:  ECLI:EP:BA:2014:R001613.20141208. The file wrapper can be found here. Illustration "Cat and Computer Mouse" by Vlado obtained via


  1. The reasoning in R.18.3 struck me. This board accepts ‘achieving the reliable and reproducible perception of a physical interaction with the real pet’ as technical problem which is sufficient to escape the article 52 (R.18.3). I’ve seen decisions on this forum in which the boards give little weight to the improved perception of a user, even it involves a lot research and technical means. For example, see the recommender of T 306/10 (‘From a technical point of view it is irrelevant what songs are recommended to a user.’)

  2. This decision shows that Tamagochis and the like are not dead!

    I have great sympathy with Sander’s comment. I thought that it is notorious that cats purr, and that most cats start purring when they are gently stroked. Making this a technical problem to be solved on a virtual cat when a cursor is moved back and forth might go a bit far.
    The decision is however also interesting in another aspect.

    The applicant claimed that his right to be heard had not been respected. Documents D1 and D2 quoted in the annex to the summons before the OD are not the same as those quoted in the decision, was not considered a problem by the Board, as the passages of the text in the decision allowed to clearly identify the correct D1 in the decision.

    That it is not clear which document D2 is meant in the decision seems more problematic. The BA has been very kind with the ED, when it held that this was a minor problem. In the minutes of the OP before the OD, there is no trace of D1, so why on earth has D2 to be in the decision? Should the BA have remitted to the ED in view of this problem, the file would probably have ended back at the BA in some time. By deciding through, the BA avoided this possibility.

    The BA has also made clear, once more, that an error in judgement, be it in the interpretation of the Guidelines is not a procedural defect, but a matter of substance. This confirms a long standing line of case law.

    Nevertheless, re-reading the decision, and to check the coherence of the data is not asking too much… On the other hand, production objectives have to be achieved… This might also be an explanation…..