The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 30 July 2015

Given, taken away -- then Given back: when is a method of presenting information patentable subject matter?

The design of graphical user interfaces has seen huge innovations with the advent of the touch screen. The next wave of innovation in user interface design is imminent with the virtual reality and augmented reality revolution that requires a whole new way of interacting with machines. Whether innovations in user interface design are patentable in Europe is another question, however. Art. 52(2)(d) European Patent Convention excludes "presentations of information" "as such" (the famous last paragraph of art. 52) from patentability, and that often presents an obstacle in obtaining patents for interface designs.

Whether an innovation exhausts itself in the presentations of information is not always obvious. In a decision of 26 February 2015 (published in May), the German Bundesgerichtshof tackles the question in the context of a medical device. The reasoning has ramifications far beyond medical devices, however, and is relevant for the patentability of any user interface design.

Given Imaging Ltd, Israel, had obtained a European patent (EP 1 474 927 B1) for a method and system for displaying a series of images obtained from a capsule swallowed by a human and travelling through the gastro-intestinal tract. Claim 1, the method claim, reads:

A method for displaying an image stream, the method comprising:
1.1 receiving images acquired by a swallowable capsule (40),
1.2 the images forming an original image stream; and
1.3 displaying simultaneously on a monitor (300) at least two subset image streams,
1.4 each subset image stream including a separate subset of images from the original image stream.

Fig. 2 from the patent showing the monitor illustrates the method. The BGH construed the claim such that "original image stream" means that the images are displayed in the order they were taken, resulting in a movie-like display if the images are displayed quickly enough. The subsets created preserve the original order. They may be overlapping. The "swallowable capsule" was not under the physicians control any more once it had been swallowed.

The unnamed plaintiff brought a nullity suit alleging a number of grounds for nullity. The Federal Patent Court declared claim 1 for invalid for lack of inventive step. On appeal, the BGH reverses.

While the findings on inventive step are very much tied to the specific prior art and shall not be addressed further, the Bundesgerichtshof makes some interesting remarks regarding the exclusion of "presentations of information as such" from patentable subject matter. Not patentable is the presentation of specific information to influence human cognition, such as highlighting important information by visual clues. However, the features 1.3 and 1.4 of the defended claim 1 (which differs from the granted claim 1) one did not simply present information as such (cons. III 2 b aa (4)):
"Features 1.3 and 1.4 concern the problem of displaying an ordered stream of images - irrespective of its content - such that the user is able to comprehend it quickly and efficiently. Such teachings, which concern the (visual) presentation of information, but do not focus on its specific informational content or its presentation in a certain format, but rather take into account the physical characteristics of human perception and reception of information and are aimed at allowing, improving or making more practical the perception of the presented information, are a technical solution to a technical problem and must be considered in the assessment of inventive step."
I know that was a long sentence. German is such. But it is an important one: whenever the patentee can argue that the presentation of information is "content neutral" and takes into account the physical characteristics of human perception ("die physischen Gegebenheiten der menschlichen Wahrnehmung"), the presentation is technical in nature and to be taken into account in the assessment of inventive step. This should not be so hard - there are a great many features of human perception clever UI design will exploit, especially in the virtual reality domain.  Considering the "presentational features" in the assessment of inventive step will often make the difference between a valid or invalid patent, as this case shows - the BGH, taking features 1.3 and 1.4 into account when assessing inventive step, upheld claim 1.

Decision X ZR 37/13 of 26 February 2015 - "image stream"

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