Patentability of user interface designs - Part 2 of 2: the German approach

The German Federal Court of Justice (Bundesgerichtshof, BGH) has developed its case law with regards to the patentability of user interface designs in a series of cases starting with X ZR 47/07 – reproduction of topographical data in 2010 and culminating, for now, with the decision invalidating Apple’s “slide to unlock” patent in August 2015. Arguably the most important of these cases is X ZR 37/13 of February 2015 (IPKat post), which accepted that the specific way of how a stream of images is displayed was a technical contribution to the solution of a technical problem.
From EP 378 271
X ZR 47/07 concerned a method of displaying a selection of topographical information on the screen of a vehicle navigation system. The selection of the information is based on the vehicle’s position, and the information is displayed in central projection, with a viewing position (k) that moves together with the vehicle and is located above and behind the vehicle, and with a solid angle (g) that takes into account the instantaneous motion of the vehicle and contains a simulated position of the vehicle itself. This “bird’s eye view” is both similar to the actual view of the driver and contains, because of the elevated position behind and above the vehicle, information the driver could not actually see even in optimal conditions.

The BGH held that the subject matter of the (amended) claim was technical and not excluded from patentability by Article 52(2)(c) or (d) EPC. However, the claimed method was not inventive, because the user friendly display of topographical data was not part of the technical solution to a technical problem, but rather part of the problem to be solved. The technical features of the claim, such as identifying the current position of the vehicle, were anticipated by the prior art. In a similar vein, the BGH held three years later in another case concerning a vehicle navigation system that the selection of information (i.e. street names) for audio representation concerned the content of the information to be presented and was “presentation of information as such”, to be disregarded in the assessment of inventive step (see also X ZR 3/12 – itinerary planning and X ZR 121/11 – destination selection).

From EP 1 474 927
X ZR 37/13 of 25 February 2015 concerned EP 1 474 927 of Given Imaging Ltd, Israel, which claims 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 most interesting consideration is cons. III 2 b aa (4) (para. 35 on p. 15):

"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 physiological 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."
This sentence is both long and remarkable. At first sight, the BGH seems to make the same distinction as the EPO does between the content (the “what”) and the manner (the “how”) of the presentation of information. But that cannot really be the distinguishing factor over the map display case – arguably the method of displaying the topographical data claimed there is not directed at what is presented, but rather at how it is presented (from a bird’s perspective behind the simulated moving car). Also remarkable is the requirement that the format (“besondere Aufmachung”) of the presentation not be relevant – when claiming how to present the information, rather than what, the format is usually highly relevant. I read this to mean that mere ornamental aspects of the presentation are not technical.
The key statement is that presentations of information that take into account the “the
Given Pillcam. Please swallow.
physiological characteristics of human perception and reception of information” and make the perception of the presented information easier for the human user are technical in nature. This is remarkable, because the user-friendly presentation of data is not technical... except when it is user friendly because it takes into account the physiological properties of human perception. How to draw the line between presentations of information that are easier to digest because the information is easier to understand mentally (cognitively?) and presentations of information that make the information easier to grasp because of physiological properties of human perception? Litigators should add psychologists to their pool of expert witnesses.
In X ZR 110/13, the BGH declared Apple’s slide to unlock patent invalid for lack of inventive step over a combination of the Neonode N1 mobile phone user manual and Plaisant and Wallace’s “Touchscreen Toggle Design” (IPKat post). More interesting is that the BGH, unlike the Federal Patent Court, found that displaying a notification in accordance with the (finger) contact was a technical contribution to the solution of a technical problem.
The problem was that portable electronic devices with touch screens could be inadvertently activated (unlocked). The prior art comprised several solutions to the problem, but they all were, according to the patentee, not user friendly. The problem to be solved accepted by the BGH was therefore to provide a method for unlocking the touch screen of a portable mobile device more user friendly.
The Federal Patent Court held that the unlock image to be moved only provided visual feedback to the user and was not influenced by the state of the device. Providing such visual feedback was aimed at the comprehension (Auffassungsgabe) of the user and not technical.
Neonode N1 (released 2003, running MS Windows CE)
The BGH partially disagreed, treading a very fine line. Features directed at presentations of information were to be considered as technical if they were an embodiment of a technical means not otherwise claimed. It was unjustified not to consider the technical contribution by a presentation of information merely because it had been claimed in the form of the display of specific information.
Applied to the case at hand, the specific swiping gesture not only led to the activation of the device, but also to the display of a notification signaling the command and its continuation. This was a technical contribution to the technical problem of making the activation process visually recognizable to the user and to improve the operating safety. On the other hand, the specific requirement that the feedback be provided by an unlock image being moved along a predetermined path took only into account human imagination (“Vorstellungsvermögen”) and was not technical.

Good enough for human perception is good enough for me
What to make of this? Under the EPO approach, the notification provided in accordance with the touch can be classified as “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”, which is technical. The decision could easily have been justified by reference to EPO case law, but interestingly, the BGH did not reference EPO case law here, but has done so in other cases regarding user interface designs, e.g. in the “image stream” decision.
That the Federal Court of Justice would reference EPO decisions in the image stream decision is remarkable because this decision is arguably the most important departure of
A big nose helps for once
German practice from the EPO approach. Under the “image stream” reasoning, features claiming content having an effect on human cognition (“Verstandesfähigkeit”) are not technical, but features claiming the presentation of information taking into account the physiological characteristics of human perception (“physische Gegebenheiten der menschlichen Wahrnehmung und Aufnahme von Informationen”) contribute to solving a technical problem using technical means. The EPO case law does not make this distinction, which may prove very important with regards to virtual reality applications. Overcoming "VR nausea" or "simulation sickness" is an important goal of VR systems. Most solutions to the problem of simulation sickness are clearly technical, such as the means to achieve better head tracking and reduced latency. But some are "merely" presentation of information - e.g., of a virtual nasal bridge in the field of view of the user. If they take into account the physiological characteristics of human perception, they are clearly patentable subject matter under the German approach.

Patentability of user interface designs - Part 2 of 2: the German approach Patentability of user interface designs - Part 2 of 2: the German approach Reviewed by Mark Schweizer on Thursday, April 21, 2016 Rating: 5


L.B.Z. said...

I have only read the summary of X ZR 37/13 presented in the post, but the legal principle seems compatible with certain EPO decisions, such as the "information heralds" case T862/10; the proposition that physiological effects can be technical can be squared with the case law of the Boards of Appeal. However, I must also say that I don't see in the claims at issue in the BGH decision anything that is specifically linked to the physiological charcteristics of human perception (the claims cover just about any subset of images, no selection criterion is specified), so perhaps the divergence here is caused by claim interpretation rather than the legal approach to excluded subject - matter.

Anonymous said...

The issue might best be exemplified by whether presenting something in a particular colour can make something inventive because certain user cohorts, e.g. colour blind persons, are also able to use a device. The fact that the choice of the colour of an anti-rust paint has no technical effect means that that feature cannot make paint inventive because it solves no problem in that paint. Where there is a plausible reason for the choice of colour, such that something about the way a user can interact with a device (or vice versa) is different, then the means "colour" is technical. I think there is an electric fence pattern (colour?) patented which relies on the effect of the device in use in view of the known special effect the pattern (colour) has on the target animal.

Thus the argument as to "technicality of a feature" is not relevant, or not answerable a priori. The issue is: does the feature have an unavoidable effect, or it its effect entirely due to the interpretation of the information content of the feature when perceived; that is, the effect and problem being solved depend only on a mere base-less assumption that the/a person´s reaction is suitably altered due to their predelictions, and there is no necessary causative effect in the feature, then *that* problem is *not* causally solved by the feature. The famous "reformulation of the problem in a less ambitious manner" is then what kills the claim - as the objective technical problem, or series of unrelated partial objective technical problems, reduces to the mere provision of alternative/s expressly not legitimately motivated by any further/other consideration in view of the facts.

Another example perhaps: Braille would have been patentable even though it is a "representation of information" par excellence, but not "as such". The same cannot be said for a claim directed to a particular choice of font/serif in embossed printing.

DrZ said...

As an interesting deviation on when the EPO consider (or don't) the effect on human perception there are two cases from the same board 3.5.04 (with two of the same members). In T979/06 the reduction of flicker in a video was deemed technical and in T 509/07 the aim of reducing flicker was non-technical.

Michael Thesen said...

Dear Mark, thank you for this excellent summary. I wonder if this puzzle can be put into a broader context as follows: The German landmark decision "Rote Taube" of 1976 defines technicality as the "purposeful use of natural forces to achieve a result with clear cause and effect". If you slightly generalize from "natural forces" to "natural law" or "laws of nature" this might encompass the "physiological characteristics of human perception and reception of information". Drawing the line between physiological and purely mental (or psychological?) characteristics of human cognition would immediately lead to the deeply philosophical question of the existence of a free will in a human brain entirely dominated by the laws of nature, which of course impossible to answer because in a definitive way.

This line moves constantly forward due to scientific progress and, lucky enough, we do not need a philosopher or psychologist to decide on which side of the line we are: If the disclosure proves that, at the priority date of the invention, the inventor was able to understand and explain the laws of nature (including the physiological characteristics of perception) he uses to achieve a specific result, he is definitely on the "technical" side.

THE US anon said...

Not sure whether the difference is NOT completely arbitrary as to "effect" caused by human conditioning (i.e. red means warning, yellow means caution) can be so easily dismissed from "physical causation" principles (yellow is used in nature as a warning - and there is NO (human) cognitive intrusion there).

Further, at last in the US, the actual physical causation is NOT a prerequisite (product by process claims).

This all just sounds like an attempt to curb patent rights that (again, at least in the US) are governed under the (really simple) two prongs of our 101:

- Utility (for us, this is in the Useful Arts, a broader spectrum than your Technical Arts)

- Category (a purposefully broad view of four categories, the invention must fit at least into one of them (and may fit into several).

Everything else is just philosophical muckraking.

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