Can human characteristics be patented?
Guidelines for Examination
The reproduction of information within the meaning of Art. 52 (2) d) is understood to mean the transfer of information to a user. It concerns both the cognitive content of the information presented and the type of representation (T 1143/06, T 1741/08). The display is not limited to visual information, but also includes other types of display such as B. audio or haptic information. However, it does not extend to the technical means used to generate the information reproduction.
The transmission of information to a user is to be distinguished from the technical information reproduction directed to a technical system, whereby the information is processed, stored or passed on. Features of data coding schemes, data structures and electronic communication protocols that do not reproduce cognitive but functional data are not considered to be the reproduction of information within the meaning of Art. 52 (2) d) (T 1194/97).
When assessing the prohibition of patentability under Art. 52 (2) and (3), the claimed subject-matter must be viewed as a whole (G ‑ II, 2). In particular, a claim that is directed to or includes the use of any technical means for displaying information (e.g. a computer screen) is technically as a whole and therefore not excluded from patentability. Another example is a claim for a set that consists of an article (e.g. a bleach compound) and additional features such as instructions for using the article or reference information for evaluating the results obtained, these additional features having no technical effect on the Have an article: This claim is not excluded because it has a technical feature, namely an article that comprises a mixture of substances.
If it turns out that the claimed subject-matter as a whole is not excluded from patentability under Art. 52 (2) and (3), the remaining patentability requirements are examined, in particular novelty and inventive step (G ‑ I, 1).
When assessing inventive step, all features relating to the reproduction of information are examined to determine whether, in the context of the invention, they contribute to a technical effect that serves a technical purpose. If not, they do not make a technical contribution and cannot support the existence of an inventive step (G ‑ VII, 5.4). To determine whether a technical effect is being produced, the examiner assesses the context of the invention, the task the user is performing, and the actual purpose of the particular presentation of the information.
A feature that defines a representation of information creates a technical effect if it credibly supports the user in the execution of a technical task through constant and / or guided human-machine interaction (T 336/14 and T 1802/13) . The technical effect is credibly achieved if the user's support in performing the technical task is objectively, reliably and causally linked to the feature. This is not the case if the claimed effect depends on the subjective interests or preferences of the user. For example, some users understand data more easily when it is presented as numerical values, while others may prefer it to be color-coded. The choice between two different data representations is therefore not considered to have any technical effect (T 1567/05). Similarly, the question of whether it is easier to understand audio information in a representation as a tone scale or as spoken words only relates to the cognitive abilities of the user. As a further example, an option offered to the user to define parameters for the display of information or to select the type of display does not make a technical contribution if it only enables the definition of subjective user preferences.
It can be difficult to determine to what extent a certain information presentation can be credibly considered to support the user in performing a technical task. When assessing inventive step, this can be facilitated if the invention is compared with the prior art and the analysis is thus limited to the distinguishing features (G ‑ VII, 5.4, 5th paragraph). This comparison can show that a solution is already known in the state of the art for the potential support in the execution of the technical task, so that the distinguishing features do not make any technical contribution (e.g. only concern non-technical subjective user preferences).
A characteristic that relates to the presentation of information is usually defined
This categorization is used in the following to enable a more detailed discussion of the technical effect. It should be noted, however, that these categories are not intended to be exhaustive. There are also cases where a characteristic can fall into both categories. For example, a step of "displaying the surname of a customer in capital letters" in a claimed method relates to both the cognitive content of the information displayed (last name of a customer) and the type of display (in capital letters). Such a characteristic actually consists of two characteristics: the displayed text is the last name of the customer (first category), and the displayed text is displayed in capital letters (second category). The type of representation itself can also transmit further cognitive information. So could z. B. it can be agreed that the capitalized part of the name is the surname.
If the cognitive content of the information presented to the user relates to an internal state prevailing in a technical system and it enables the user to operate the technical system correctly, it has a technical effect. An internal state prevailing in a technical system can be an operating mode, a technical condition or an event, each of which relates to the internal functioning of the system, can change dynamically and is determined automatically. Typically, the representation of such an internal state causes the user to interact with the system, e.g. B. to avoid technical malfunctions (T 528/07).
Static or specified information on technical properties or potential states of a device, specifications of a device or operating instructions are not considered to be the internal state of a device. If the representation of static or specified information only has the effect of supporting the user in non-technical tasks that precede the technical task, it does not make any technical contribution. For example, the effect that the user does not have to know or learn a sequence of buttons that have to be actuated before configuring a device is not a technical effect.
Non-technical information, such as the status of a casino game, a business process or an abstract simulation model, is aimed exclusively at the user and serves the purpose of a subjective assessment or non-technical decision-making. They are not directly related to a technical task and are therefore not considered to be an internal state prevailing in a technical system.
A feature of this category usually defines the form or arrangement in which information is transmitted to a user, or the time of transmission (e.g. on a screen). An example of this is a diagram designed solely to convey information. Specific technical features that relate, for example, to the way in which audio signals or images are generated, are not regarded as a way of presenting the information.
Features that define a visualization of information in a particular diagram or layout are normally not considered a technical contribution, even if the diagram or layout conveys information in a way that a viewer intuitively finds particularly appealing, plausible or logical.
For example, dealing with limited space on the screen relates to the design of information displays for a human observer and is not in itself an indication of technical character. The general idea of using a single image to provide an overview of several images in a limited screen area and continuously replacing it with other images is not based on technical considerations, but is simply a question of the conceptual arrangement. Likewise, the arrangement of objects in the available screen area with the removal of "white areas" between windows follows the same layout principles as the layout of a magazine and does not involve any technical considerations.
If, on the other hand, the method of representation credibly supports the user in performing a technical task through constant and / or guided human-machine interaction, it creates a technical effect (T 1143/06, T 1741/08, T 1802/13). For example, displaying several images side by side in low resolution with the option of selecting an image and displaying it in higher resolution transmits information to the user in the form of a technical tool that enables him to carry out the technical task of an interactive search and query of stored images more efficiently. Saving digital images in different resolutions has the technical effect that an overview can be displayed with several simultaneous images (T 643/00). Another example relates to the special way in which in a soccer video game the user is informed of the location of the next player in his own team by the dynamic display of a guide mark on the edge of the screen if he is not visible on the screen: The display here generates the technical effect of facilitating constant human-machine interaction by resolving a conflict between technical requirements, namely the display of an enlarged part of an image and the display of an overview of a relevant area that is larger than the screen display (T 928 / 03). As another example, in the context of a visual aid to a surgeon, displaying the current orientation of a medical ball and socket implant during surgery in a manner that credibly assists the surgeon in more accurately correcting the position of the implant is considered a technical effect.
If the way in which information is presented causes an effect in the user that does not depend on psychological or other subjective factors, but on physical parameters that are based on human physiology and can be precisely defined, this effect can be regarded as a technical effect. The type of representation then makes a technical contribution insofar as it contributes to this technical effect. If, for example, a message is displayed on one of several computer screens near the center of the user's visual attention, this has the technical effect that the message is more or less certain to be seen immediately (in contrast, for example, to being placed randomly on one of the screens ). The decision to display only urgent messages (as opposed to displaying all messages, for example), on the other hand, is based solely on psychological factors and does not make any technical contribution. A minimization of information overload and distraction cannot be ascribed a technical character per se (T 862/10). In another example, the presentation of a series of images in which the parameters for the time interval and the change between successive images are calculated on the basis of physical properties of human visual perception in order to achieve a smooth transition is rated as a technical contribution (T 509/07) .
If information (e.g. a visual or auditory stimulus) is presented for the purpose of evoking a physiological reaction (e.g. an involuntary eye movement) in a person, which can be used to assess a medical condition (e.g. impaired vision , Hearing impairment or brain damage) can be measured, this information can be regarded as producing a technical effect.
If the claimed subject matter contains a feature with an information display of categories i or ii, this includes an evaluation by the user. Although such an assessment is in itself a thought activity (Art. 52 (2) c)), the mere fact that thought activities are involved does not necessarily make an object non-technical. In the case of T 643/00 mentioned above, for example, the user carries out an assessment on the basis of an overview with low-resolution images in order to localize and objectively identify a desired image. This mental evaluation can be viewed as an intermediate step that controls the image search and query and thus forms an integral part of the solution to the technical problem. Such a solution is not based on facilitating the human tasks of understanding, learning, reading or memorizing, nor on influencing the user's decision as to which image is to be searched for. It is a mechanism for entering a selection that is only possible by displaying the images in that specific order.
If, on the other hand, a selection or a layout of information is aimed exclusively at the human mind, in particular to support the user in making a non-technical decision (e.g. about a product purchase on the basis of a diagram showing product properties), no technical contribution will be made done.
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