The European Patent Convention (EPC) excludes from patentability “presentations of information… as such” (Article 52 (2) (d) EPC) — therefore, any feature of an invention which falls within this definition cannot contribute to the assessment of inventive step of a claimed invention.
The modern world is replete with user interfaces which seek to present information and receive user input in ways which reduce the impact on the user without reducing content. It is therefore of interest to the European patent prosecution community and applicants for European patents alike to consider where the line is drawn between what is being presented on a user interface and how the information is being presented.
In the EPO’s own guidelines, a feature relating to a presentation of information, which is defined solely by the content of the information, does not have a technical character. This applies whether the feature is explicitly claimed as a presentation of information or as processes or apparatus for presenting information (features defined solely by the information indicated or recorded).
The EPO attempts to clarify where the line is between what is being presented and how it is being presented by clarifying that a credible technical effect can be conferred by an arrangement of manner of presentation.
This issue has been recently discussed by the EPO in T 1802/13, which was an appeal from a decision of the examining division to refuse a European patent application on the grounds of, inter alia, a lack of patentable subject matter. Specifically, the objection based on a lack of patentable subject matter was based on an alleged presentation of information as such. The patent application related to a method of analysing brain tissue maps in conjunction with disease analysis.
In the appeal, the EPO assessed whether the feature “…i) a map is displayed in which the electrode leadwire and the predicted volume of activation are superimposed on the patient-specific atlas of the brain tissue…” was a presentation of information as such, or not (having accepted that this feature was novel over the closest prior art).
The applicant submitted that the feature had the technical effect of “lowering the cognitive burden of the user”. The applicant also submitted that the feature addressed the problem of “providing an improved system that provides a more efficient method of selecting the electrode parameters for DBS”.
The EPO, in considering these submissions, repeated its own established view that “lowering the cognitive burden of the user” is not a technical effect per se.
The EPO also rejected the view that the feature addressed the problem of “providing an improved system that provides a more efficient method of selecting the electrode parameters for DBS” as being mere speculation as, according to the EPO, it could only be said that this feature presented cognitive content which addressed the user’s mental process, instead of credibly and causally assisting the user.
The EPO expanded on this by setting out that the view of the map and the superimposed lead wire and predicted volume of activation would be entirely dependent on the screen resolution. According to this author’s understanding, the EPO was looking for a tangible causal link between what was being presented and the selection of the electrode parameters for DBS — not the assertion that the image would influence the selection of the parameters.
The EPO is drawing a picture here of where the difference lies between how information is presented and what information is presented. Information required for the selection of the parameters seems to have been presented by the map and the superimposed features – but only insofar as it assists the user in selecting those parameters (it reduces the cognitive burden on the user). This is still reliant on user expertise to select those parameters.
The EPO seemed to be looking for an objective link between the map, the superimposed features and the selected parameters (something which would provide the parameters without the expertise of the user).
Looking at this from a broader perspective, it seems possible that presenting information can be technical — but the information must be objectively provided by the claimed invention without relying on external factors such as human expertise or perception — and the claim must define a step which derives the information, in order to provide the necessary technical character.