In this appeal, the Board agrees with the appellant's argument that the subject-matter of claim 1 involves at least some technical features which are not regarded as notorious knowledge of the skilled person. Apart from business related aspects of order processing the claimed subject-matter also involves aspects concerning authentication and identification of users at different entities of the claimed system. The Board considers the latter to contribute to the technical character of claim 1 so that they cannot be regarded as being part of the non-technical requirement merely to be implemented by the technical skilled person. Further, the examining division interpreted technical features of the claim to be in the administrative, i.e. non-technical domain. The Board in contrast considers those features (related to authentication and identification) to be technical. In the Board's view this was an incorrect application of the COMVIK approach.
In reason 4.1, the Board indicated that "an insufficiently reasoned decision has to be distinguished from a decision that has faulty or unpersuasive reasoning. The decision under appeal is not based on mere allegations, nor does it lack a clear comprehensive argumentation. The Board agrees with T 690/06 (see reasons, point 13) that notorious prior art, i.e. prior art which cannot reasonably be contested to have been generally known and which is cited without proof, is allowable by the jurisprudence. The COMVIK-approach may have been incorrectly applied, but this is a substantive issue, only involving judgement. Thus, the decision is reasoned in the sense of Rule 111(2) EPC."
The decision leaves some unsatisfactory feelings... a wrong decision that is -as the Board indicates multiple times- clearly faulty reasoned in several aspects forces the applicant to appeal at the cost of an appeal fee as he would otherwise loose the application, and he will need to pay for the errors made by the first instance division. Some patent attorneys and other stakeholders further expressed their worries that the focus on speed in substantive examination, with only one written round as a main rule, as well as in opposition may lead to more erroneous decisions - which another round of discussion may have prevented. An appeal case like the one below may lead one to consider that also a reimbursement of the appeal fee due to clearly faulty reasoning by the first instance division would be fair, and not only if there was a substantial procedural violation.
Keywords:
Remittal - examination of novelty and inventive step (yes - technical features not assessed)
Substantial procedural violation - (no, features incorrectly assessed as non-technical, error of judgement)
The claimed invention makes use of available materialised views in order to improve database query performance. Due to the age of the application (filed in 2001), the Board examines inventive step in an appeal concerning added subject matter.
In this opposition appeal, the novelty of claim 1 is discussed, which reads as follows:
"A life support system for an aircraft, including a first oxygen supply apparatus operable to provide a limited supply of first product gas being one of pure oxygen and oxygen-enriched gas, to a breathing gas supply apparatus, and a second oxygen supply apparatus operable to provide a durable supply of second product gas which is an oxygen-enriched gas containing a lower concentration of oxygen than that in the first product gas to the breathing gas supply apparatus, wherein the second product gas is supplied at a pressure which is higher than that at which the first product gas is supplied to the breathing gas supply apparatus".
Of particular interest is the highlighted part: the Board deliberates whether this implies an actual technical limitation of the system, or merely pertains to a particular use of the system.
The Board considers the answer to lie in the specification: "the skilled person will need to interpret the claim by seeking to understand how the claimed pressure relationship is achieved in the rest of the specification".
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.
