Is the animated representation of a ventilated lung patentable subject matter?

Patent litigation about ventilator technology in the midst of the COVID-19 pandemic may not seem too surprising, although this case started in 2017, long before ventilators came to worldwide attention. The most recent decision of the Swiss Federal Supreme Court on ventilators deals with the fundamental concept of the technical character of an invention. It is also a landmark decision on when patentability is (not) excluded for presentations of information (Art. 52(2)(d) EPC) and for the COMVIK-approach of the EPO (see below). 

The case

Animated lungs

Both the claimant, Hamilton Medical AG, and the defendant, imtmedical AG, manufacture ventilators for use in intensive care. Hamilton is the registered owner of EP 1 984 805 B1, related to a "method and a device for simplifying a diagnostic assessment of a mechanically ventilated patient". Independent claim 1 relates (in summary fashion) to a ventilator having a screen that represents a lung shape designed such that – 

a volume change of the ventilated lung which is acquired with each breath, is represented in an animated manner by way of a size change of the lung shape corresponding to this volume change, involving an animation of a contour line of the lung shape, the design of which containing qualitative information on the compliance of the lung. 

Hamilton sued imtmedical for patent infringement before the Swiss Federal Patent Court and was awarded a permanent injunction in first instance. Upon appeal by imtmedical, the Federal Supreme Court affirmed the judgment. 

The essential question before the Supreme Court was whether the animated presentation of the change in the volume of a ventilated lung contributes to solving a technical problem and thus can be relied upon when analyzing inventive step. If the answer is “no”, this feature should be ignored when examining inventiveness and, as a result, the patent should be declared invalid for lack of an inventive step. 

The technical character of the invention as a whole

The defendant disputed that the invention had a technical character and argued that it was not patentable under Art. 52(2)(b) EPC (aesthetic creation) and/or Art. 52(2)(d) EPC (presentations of information). The Supreme Court, however, had no doubt that the invention, as a whole, had a technical character. It explained, referring to EPO case law, that the presence of a single technical feature (such as a screen in the case at hand) is sufficient to consider that the invention as a whole is of technical nature. 

The technical character of the animated representation of the lung

The presentation of information has a technical character if the underlying user interface together with the manner in which cognitive content is presented (1) credibly assists the user; (2) in performing a technical task; and (3) by means of a continued and guided human-machine interaction process (see in particular the EPO BoA decisions T 336/14 and T 1802/13). The information presented must relate to the technical status of the machine, whereby an intuitive presentation of information is not automatically of a technical nature, irrespective of whether it allows a more efficient interaction with the machine. 

The graphical presentation of how the volume of the lung changes during the ventilation process provides information about the technical status of the ventilator itself and thus it performs a technical task. It also credibly assists the user (healthcare professionals) and it is part of a human-machine interaction process. The technical character of the animation and, in particular, the "credible" assistance of the use does not depend on whether the user assistance is improved compared to the prior art. 

The Supreme Court refers to the EPO Guidelines for Examination (sec. G-II-3.7), which sets forth that-- 

a technical effect is considered credibly achieved if the assistance to the user in performing the technical task is objectively, reliably and causally linked to the feature. This would not be the case if the alleged effect depends on subjective interests or preferences of the user.

The question is therefore whether the graphic presentation of the change in the volume of the lung is useful for the healthcare professionals to adjust the ventilation to the individual patient. In other words, there must be a causal link between the presentation of the information and the tasks performed by the human receiving the information. This was found to be the case here, as the user can draw the necessary conclusions based on the presented information and his or her general experience to modify the parameters of the ventilation. 

Based on these arguments, the Supreme Court found that the presentation of the change of volume of the ventilated lung has a technical character and this feature must therefore be taken into account when analyzing the inventive step. Along with this feature, the patent was found to be inventive over the prior art using the problem-solution approach. 

Comment 

This decision must be read against the backdrop of the COMVIK-approach, which the Supreme Court has now formally accepted to be applicable in Swiss patent law. Under the COMVIK-approach (named after the Boards of Appeal decision T 641/00 of the same name), "where a feature cannot be considered as contributing to the solution of any technical problem by providing a technical effect, it has no significance for the purpose of assessing inventive step." 

Though this Kat does not disagree with the result, he regrets not being able to have read more detailed explanations on the causal link between the graphical presentation of the change of volume of the lung and the healthcare provider's decision to modify the ventilation parameters. This may be easy to understand with the facts of this case, but may be more difficult to argue in future cases. Further guidance would have been welcome. 

Finally, one important takeaway is the Court's insistence on the fact that it is not necessary for the patentee to provide an improved technical solution. "Credibly assisting" the user does not mean "better assisting" them. Alternatives to existing solutions do not need to be assessed on whether they also constitute improvements, provided that they are new and inventive.