Wednesday, September 26, 2018 T 2355/12 - the boundaries of claim interpretation

A prior art user equipment

In a novelty objection the terms of the claims might be given a broader reading then the applicant would like. This decision shows that there are limits on how broad a term may be constructed.

The invention concerns a "A method for measuring audience size information based on playbacks of a recorded program" in which programs are recorded on "user equipment of a plurality of audience members".  In his refusal, the Examiner found that the central playback facilities in a video distribution system anticipates the term; after all such equipment is in common use by the plurality of audience members. 

The board agreed with the applicant that this interpretation conformed neither to the normal meaning of the term nor to the description of the present application. Unfortunately, for the applicant his victory was short lived as the objection was turned into an inventive step objection upon remittal. The current status of the file is a deemed withdrawal, more than 18 years after the priority date.

Summary of Facts and Submissions

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V. Claim 1 of the main request reads as follows:

"A method for measuring audience size information based on playbacks of a recorded program comprising:

recording a program on user equipment of a plurality of audience members;

receiving indications of playbacks of the recorded program from the plurality of audience members;

updating the audience size information for the recorded program in response to said receiving;

providing the updated audience size information to at least one user within an interactive television application".

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Reasons for the Decision

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Iterpretation of claim 1 of the main request

2.1 Claim 1 specifies "recording a program on user equipment".

2.2 The board does not share the examining division's view that "user equipment" might be construed to mean "a central playback facility and recording media in a VOD (Video On Demand) distribution system" (see point VI(a), first option, above).

Rather, the board agrees with the division's interpretation that the term "user equipment" refers to "end user devices at the audience members' homes" (see point VI(a), second option, above).

This interpretation is confirmed by the description of the present application, page 18, lines 27 to 33:

"User television equipment 200 of FIG. 3 receives video or a digital video stream and data from distribution facility 180 (FIG. 2a), such as a program distribution facility or some other suitable distribution facility, at input 250."

This passage and Figures 2a to 2e clearly distinguish between user (television) equipment and a distribution facility.

Moreover, page 18, lines 3 to 10 discloses that "[a]udience information may be transmitted from each user television equipment 200 to distribution facility 180 [,... ] accumulated at distribution facility 180 [..., and] the accumulated audience information [may be distributed] to user television equipment 200". If the "user equipment" were part of the distribution system, this phrase would be nonsensical.

Thus, in the context of the present application, the "user equipment" is not part of the distribution system.

2.3 The application consistently refers to a "user" operating "user equipment", for instance, to tune "set-top box 260 to a desired television channel" (page 18, lines 27 to 34), or to instruct the application implemented on interactive television program guide equipment to generate a main menu (page 23, lines 26 to 30). Furthermore, the "audience information may be overlaid onto the program the user is watching [... or] displayed when a user selects a program listing from a guidance application" (page 25, lines 6 to 9).

It is immediately evident from the quoted passages that, in the present application, the term "user" does not refer to an advertiser but to a person using the "user equipment", for instance, a subscriber.

2.4 Moreover, the board agrees with the appellant that the subscriber reviewing what AVMs have been presented on his user equipment "in no way constitutes [...] providing the updated audience size information" to the subscriber (statement of grounds of appeal, page 4, first full paragraph). The term "audience size" is normally used as an indication of the number of viewers watching (or having watched) a particular program. Figure 12 clearly illustrates that in the present application the term "audience size" has its normal meaning.

2.5 However, in claim 1 the phrase "updating the audience size information ... in response to said receiving [of playback indications]" does not imply any particular technical manner of determining the number of viewers taking into account the received indications. The phrase simply means that the received indications "may be used when calculating the [...] audience of the program" (see description, the paragraph bridging pages 36 and 37).

3. Main request - novelty (Article 54 EPC 1973)

3.1 Document D4 discloses a method for measuring audience size information based on playbacks of a recorded program comprising:

receiving indications of playbacks of the recorded program from the plurality of audience members (column 11, lines 47 to 49: "AVI information may embedded in a VCR Tape and information obtained from the tape can be collected and reported by the home station" and column 12, lines 40 to 45: "The behavior collection and reporting mechanisms operate to capture subscriber behavior by collecting (i.e., storing and/or transmitting) the AVI information associated with the audio-visual material presented at each subscriber's home station and reporting this information to one or more behavior collection centers");

updating audience size information in response to the received information (column 26, lines 44 to 48: "Using information collected at the BCCs [... to determine] how many home stations were tuned in to [...] particular advertisements");

providing the updated audience size information to advertisers (column 26, lines 44 to 48: "Advertisers can determine how many home stations were tuned in to their particular advertisements").

3.2 The board agrees with the appellant that document D4 does not disclose "recording a program on user equipment". Although D4, column 11, lines 47 to 49 discloses that "the AVI information may embedded in a VCR Tape and information obtained from the tape can be collected and reported by the home station", this does not imply that the program with the AVI had been previously recorded using the user equipment. At the publication date of D4, it was common practice to distribute audio-visual material by renting out or selling VCR tapes with recorded material. Thus, playing back audio-visual material from a tape does not imply that this material had been previously recorded using user equipment.

3.3 Contrary to the appellant (see point VII(d) above), the board is of the opinion that, in view of column 11, lines 47 to 49 and column 12, lines 40 to 45 (see quotations in point 3.1 above), the passage on column 26, lines 44 to 48 ("how many home stations were tuned in to [...] advertisements") refers to both being tuned to a channel broadcasting advertisements and playing back advertisements from a tape.

However, the board agrees with the appellant that D4 does not disclose providing updated audience information to a user (see point VII(c) above). Document D4, column 26, lines 44 to 48 discloses providing information to advertisers about "how many home stations were tuned in to [...] advertisements". The board shares the appellant's view that advertisers are not users within the meaning of the present application (see point 2.3 above).

3.4 The examining division also argued (see point VII(d) above) that the paragraph bridging columns 23 and 24 ("information supplied by the extend AVI fields [...] may also be stored in additional columns of the BCT. The subscriber could then review what AVMs were presented on the home station and their associated cost") disclosed presenting audience information to the user. However, the BCT (behaviour capture table) is stored in the monitor or home station controller (see Figures 15 to 17 and the description of the home station in columns 24 to 26). Thus, the passage referred to by the examining division discloses that the user can view locally stored information, but it does not disclose that data stored in the BCTs is centrally collected and (statistically) processed and the result returned to the user terminal.

3.5 As the board could not identify in document D4 any passages more pertinent to the question of novelty of the subject-matter of claim 1, it concludes that the subject-matter of claim 1 is new over the disclosure of D4 within the meaning of Article 54 EPC 1973.

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4.2 The examining division based its novelty objection on an interpretation of claim 1 which conformed neither to the normal meaning of the terms used nor to the description of the present application (see section 2 above).

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This decision T 2355/12 (pdf) has European Case Law Identifier: 
ECLI:EP:BA:2018:T235512.20180221. The file wrapper can be found here. Image  courtesy of Pixabay by Free-Photos (under CC0)