Patentability of user interface designs - Part 1 of 2: the EPO approach

According to Article 52(2)(d) European Patent Convention, „presentations of information“ as such (Article 52(3)) shall not be regarded as inventions. Like the exclusion of “programs for computers” in littera c of the same article, the exclusion of presentations of information as such from patentability has led to diverse case law of the Boards of Appeal of the European Patent Office, in particular with regards to the patentability of aspects of graphical user interfaces (GUIs).

One billionaire in reality, many paupers in virtual reality

With the virtual and augmented reality revolution upon us, the patentability of presentations of information (as such) is likely to become a hot topic, because virtual reality headsets – and augmented reality applications – require a whole new paradigm of user interaction. In two posts, I therefore look at the case law of the Board of Appeals and then at a series of cases decided by the German Federal Court (BGH) to see whether a clear approach emerges. With regards to the EPO practice, a (relatively) recent case decided by Board 3.5.05 is interesting as it tries to summarize and distinguish a number of older cases.

The Guidelines for Examination at the EPO state that “A feature relating to a presentation of information defined solely by the content of the information does not have a technical character.” But, exceptionally, if the arrangement or manner of presentation can be shown to have a credible technical effect, it can be considered to contribute to a technical solution to a technical problem (referring to T 1741/08, T 1143/06). The Guidelines go on to state that the mere involvement  of mental activities does not on its own render the subject-matter non-technical (T 643/00). A visual indication of an automatically detected event occurring in the system itself as a prompt for human interaction with the system, e.g. to avoid technical malfunctions, is usually regarded as making a technical contribution. On the other hand, a visual indication aimed exclusively at the mental activities of the viewer, in particular at preparing the relevant data for a non-technical decision-making process by the user as the final addressee, is usually not regarded as making a technical contribution (T 756/06).

Clear enough? Well, in some cases it is. In T 1567/05, a program for modeling buildings

Fig. 7 from EP 1 026 609 A2 (FUJITSU)

displayed stress-values calculated for individual structural components of the building by using colours. If the component has a small stress value (indicating a high safety level), a colour conveying an idea of safety, such as blue, is used to indicate the component. If its stress value is high (indicating a low safety level), a colour conveying an idea of a danger, such as red, is chosen. The Board had no problem finding that, although relating to technical phenomena, the stress values were mere pieces of information aimed exclusively at the human mind. They did not represent "conditions prevailing in an apparatus" that would make them technical, because the data presented related to the building structure being designed, not to the technical conditions of the claimed system itself, such as an event occurring in it.

In a similar vein, in T 0756/06 (Displaying a schedule/FUJITSU), the Board held that the layout of a time schedule that allotted more lines per working hour than per non-working hour was for the user's mental use, i.e. according to the user's requirements and preferences, rather than for a technical purpose in a technical process. The appellant argued that the time scales took into account the nature (size) of the display and essentially resolved the prior art display problems by technical means. However, since the claimed solution did not explicitly relate the time scales to display dimensions it did not necessarily solve this problem.

In T 1741/08 (GUI layout/SAP) the applicant cleverly argued the improved layout of data entry fields on a computer Screen lowers the cognitive burden for the user; the user therefore responds more quickly; and the computer therefore requires less resources, which is a technical effect. But the Board would have none of it, calling it a “broken chain”. Where the technical effect is only achieved by way of a purely mental process (here: quicker processing of data by the human user), the effect could not be considered the result of the claimed feature.

But in other cases, namely T 0643/00 (Searching image data/CANON), the Board did seem to accept that the effect of a particular layout on the mental processes of the user could be considered to contribute to the technical solution of a technical problem. In T 0643/00, the invention was seen in an improved image searching concept. The simultaneous display of, for example, eight images in a reduced resolution ensured the fast realization of multiple image data and allowed the user to grasp the image content at a glance and to select the searched image for output in a fast and efficient manner. The function of switching between different levels of resolution ensured that the user could subject the selected image to a thorough visual check before printing or using it otherwise. Whether the actual retrieval and selection process was carried out automatically or with the aid of human interaction was, in the Board's view, not decisive for the technical character of the claimed image processing functions. “The functions/steps of processing the images in a specific format [...] provide information to the user [sic] in the form of a technical tool for an intellectual task he has to master, and hence contribute to the technical solution of the technical problem of an efficient search, retrieval and evaluation of images stored in an image processing apparatus insofar as this is supported by the specific image format chosen. In this respect it is neither mere aspects of art design, like a pleasant look or feeling, that matter, nor the mere information content of images presented, but the organisation of an overall image structure in view of a technical problem.”

From EP 0 844 580 A2 (KONAMI)

In case T 928/03 (Video game/KONAMI), the GUI of a computer 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 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.

T 0336/14 (Presentation of operating instructions/GAMBRO) of 2 September 2015 concerned a user interface for an extracorporeal blood treatment machine which comprises at least one touch screen with at least two distinct areas, a first area of the two distinct areas exhibiting at least two touch keys. The Board identified as distinguishing features over the closest prior art WO-A-02/26286 that in the first area of the display a “plurality of data comprising operating instructions for readying the machine for use” was shown, with “at least two images being pictographs which represent configurations of the machine correlated to the operating instructions.”

The Board tried to provide some guidance in its decision: if the claim is directed at how, i.e.,

From EP 1 668 556 B1 (GAMBRO)

in which manner, information is presented, it is generally technical in nature. If, on the other hand, the claim was directed at what was presented, i.e., is related to the content of the information, it has to be assessed why the content is presented. Only if the content presented credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process is it technical in nature.

To answer the “why” question, 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 for enabling its proper functioning, or, whether it represents a state of a non-technical application run on that technical system (such as the state of a simulation model in T 1073/06). In the case at hand, the Board held that the information displayed constituted pre-stored static information that was not conditional on any internal state of the blood treatment machine, nor did it provide any details on the current operating state of the machine. It is, simply put, an instruction manual on a touch screen, and at thus only addresses the human mental process of an "average user".

The “how” prong of the test allowed the Board to distinguish over T 643/00, where the layout of the images, rather than their content, was claimed. But under the same test the layout of the input fields in T 1741/08 (GUI layout/SAP) should have passed, because the layout, rather than the content of the fields, was claimed. The “how” filter is arguably too coarse to reflect the current state of the case law.

The Board also tried to distinguish over T 643/00 in noting that the application at issue in T 643/00 concerned the resolution of the images. But the resolution in T 643/00 was not reduced for technical reasons, such as faster image manipulation by the processor, but for simultaneous display of several images to facilitate searching by the user. If more efficient image search is technical, why is more efficient operation of a blood treatment machine not technical? T 643/00 seems to represent an exception rather than a rule, a view that is supported by the fact that of the 17 decisions citing T 643/00, only two found a technical effect in the presentation of information (besides the already mentioned T 0928/03 [Video game/KONAMI] T 0049/04 [Text Processor/WALKER]), and both of these are over ten years old.