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EPO – TBA holds the cognitive evaluation of thumbnail image files displayed in a specific arrangement for improved image retrieval to be non-technical

25 Mar 2015

Sharp Kabushiki Kaisha (Appellant Applicant), Technical Board of Appeal 3.5.07, 18 July 2014, Case No. T 1214/09-3.5.07 "Information managing device/SHARP", by Stefan V. Steinbrener, Bardehle Pagenberg

Technical Board of Appeal 3.5.07 did not deny any contribution by the claimed arrangement to improved search and retrieval of stored images. However, in the Board’s judgment, the arrangement was not based on considerations other than those proper to the field of designing presentations of information for human viewing and hence was not an expression of any technical principle.

One of the more complex items on the non-exhaustive list of non-inventions set out in Article 52(2) EPC is the exclusion of presentations of information. Neither in the Convention nor in its preceding travaux préparatoires is any explanation given of what has to be understood by a “presentation of information”.

Nor is the existing case law of the Boards of Appeal consistent in this respect: while presentation of information is seen by some Boards (see e.g. decisions T 49/04-3.4.03 or T 1749/06-3.4.03) to only relate to the information contents, but not to its layout (only “what” is excluded, but not “how”), other Boards (see e.g. decisions T 1143/06-3.5.01 or T 1741/08-3.5.06) are much stricter and base their argument on whether or not the effect of data visualization, including both contents and layout, is only on the mind of the user, in particular by easing a mental evaluation or lowering a cognitive burden. In this case, a technical effect is denied, more or less irrespective of whether such evaluation step may occur in an otherwise technical environment.


Decision T 643/00-3.5.01 takes up an intermediate position by holding that even if an evaluation by the user on a mental level is involved in solving a technical task such as searching and retrieving images stored in an image processing apparatus in a more efficient or faster manner, the mere fact that mental activities are included does not necessarily qualify subject-matter as non-technical.

Since it goes without saying that visualization aspects play an ever increasing role in modern man-machine interactions which are most notably realized by graphical user interfaces, the current legal and judicial situation does not seem to be satisfactory.

In the recent case T 1214/09 concerning European patent application EP 0 977 132 A2, Board 3.5.07 joined the club of more severe Boards by finding that under the given circumstances any improvement in the efficiency of image retrieval could only be the result of the non-technical improvement in the user's evaluation of the displayed thumbnail file images. Hence, the claimed thumbnail arrangement did not contribute to a technical solution of the problem of enabling more efficient image retrieval and in consequence was disregarded for inventive step.

It appears that with the new decision the case law moves in the direction of denying technical character of mental evaluation steps based on data visualization, even if these steps are included in otherwise technical subject-matter like methods for data retrieval. In this context, additional requirements for accepting a technical contribution have been established, in particular the necessities of a “direct technical effect” or an “unbroken chain of technical effects” and a “purely technical problem”.

Such a strict approach therefore begs the fundamental question under what circumstances, and if at all, presentation of information, normally including a human mental interaction, can make a technical contribution. One might therefore have doubts whether this approach is systematically correct and whether the standard to be applied should not preferably be along the lines of T 643/00 accepting technical interactions by visualization steps in an overall technical method. In any case, taking account of the turn the case law is about to take, claims based on visualization aspects should at least be drafted so that a comprehensive set of features clearly defining an altogether technical subject-matter is included, and not only visualization steps are referred to.

Read the decision (in English) here.

A more comprehensive summary of the decision (in English) will be published in Bardehle Pagenberg IP Report 2015