“The notorious practice of poetry”

European patent law excludes a variety of subjects from patentability, including “programs for computers” and “presentations of information”. The ambit of these exclusions has been the subject of intense scrutiny in recent years. There have recently been several decisions from Boards of Appeal of the EPO concerning the extent to which the arrangement of images and diagrams om a screen can contribute to a technical solution to a technical problem, and hence be patentable. In one positive decision, it was found that an arrangement of menu items or images on a screen may be determined by technical considerations. In a subsequent negative decision, it was held that the task of designing a diagram was non-technical. These two decisions have been reviewed by a third Board of Appeal, which criticises the negative decision and comes down positively in favour of displays in general, and a method for parsing and displaying text for ease of reading in particular.

 

The earlier positive decision: T 643/00 – CANON

The claims in this case were lengthy, but can be summarised as an apparatus and method for displaying images at low resolution in separated portions of a display such that, upon selection by a user, a selected one of the images can be processed at increasing levels of resolution. The invention stems from the idea of making the searching easier to the human user by arranging images side-by-side at low resolution, to allow a comprehensive survey as well as a fast check for details.

On patentability, the Board concluded that the claimed features related to the format of images displayed and not the presentation of information as such. If the only effect of presenting information through a user interface were the visually attractive nature of the graphic display, this would not have technical character. But an arrangement of menu items (or images) on a screen may be determined by technical considerations. Such considerations may enable a user to manage a technical task such as searching and retrieving stored images in a more efficient or faster manner (it is interesting that the Board characterised such tasks as “technical”), even if evaluation by the user at a mental level is involved. The patent was allowed.

 

The earlier negative decision: T 125/04 – COMPARATIVE VISUAL ASSESSMENTS. INC.

In this application, a comparative visual assessment system was described for aiding a user in product selection, in which the length and angle of a vector on a display indicated the score attributed to a component (e.g. engineering quality) and the importance of the component to the user’s choice.

The overall effect was to inform a customer about the properties of a product in which he is interested. It was viewed by the Board as an effect on a human being – merely an intellectual effect. It did not matter that raw data was being manipulated into final data more helpful for human decision-making, because some data manipulation is inevitable in any kind of presentation of information in the form of a figure or diagram. In general the task of designing a diagram was considered non-technical. The Board considered T 643/00 - CANON but distinguished it on the facts.

 

The latest word: T 49/04 - WALKER

This was an appeal from refusal of a patent application for a method and device for enhancing text presentation. The invention operated by parsing the text into punctuation and parts of speech, and applying folding rules and horizontal displacement rules to display the text, in cascading segments, in lines down and across a display. This was said to enhance the readability of the text. At first instance, the Examining Division found no inventive solution to a technical problem which went beyond the mere application of an algorithm for formatting text.

The Board of Appeal disagreed. As a preliminary point, the Board was satisfied from the various technical terms in the claim (“machine-readable natural language text”, “parsing”, “storing”, “displaying” etc.) that the method steps were to be implemented on a computer, even though this was not explicitly stated. So the claim was to a statutory invention within the meaning of Article 52(1) and (2), not to excluded matter per se.

In analysing the issue of inventive step, the Board saw the problem addressed as being the unsatisfactory nature of computer screens, as compared to paper, for displaying text because of their poor resolution. The “technical” problem was “providing a technical tool for enhancing natural language text presentation on a computer screen.” The invention as claimed solved this problem through its folding rules and horizontal displacement rules based on parts of speech. This contrasted with the line breaks made by a conventional word processor.

The invention had non-technical aspects (relating to enabling a user to read text) and, following T 641/00 – COMVIK, such non-technical features could not contribute to establishing an inventive step. So the Board considered only the features it identified as “technical”.

At this point, the Board reviewed the “somewhat divergent” conclusions of the earlier CANON and COMPARATIVE VISUAL ASSESSMENTS cases and viewed the latter with disapproval, expressing the view that the task of designing diagrams is not necessary non-technical. The conveyance of information in a manner that a viewer may regard as particularly lucid and logical might indeed be technical. Preferring the rationale of the CANON decision, the Board expressed the view that technical aspects cannot be ruled out in the design and use of a graphical interface. A feature which relates to the manner in which the “cognitive content”, such as images, is conveyed to the user can very well be considered as contributing to a technical solution to a technical problem, especially, as here, where the particular manner of conveying the information allows the human user to perform their task more efficiently.

The Examining Division had found the invention obvious having regard to (a) a document describing a word processor that divides the text of a paragraph into lines and (b) “the notorious practice of poetry”. The Board disagreed, pointing out that the invention breaks up the text into lines without involving the author of the text.

 

Comment

The Enlarged Board of Appeal exists to harmonise EPO case law. Analysis of “technicality” (a key topic these days at the EPO, though one with little statutory basis) is heavily fact-specific and hence not easy to distil down to a simple question of pure law. suitable for reference to the Enlarged Board of Appeal. But here we have different Boards of Appeal in open disagreement over whether the designing of a diagram is necessarily non-technical. In view of the intense interest over the boundaries of what is and is not “technical”, a referral by the President to the Enlarged Board of Appeal under Article 112(1)(b) EPC would seem desirable even if difficult to draft.