T 1802/13 - Mixed invention

Key points

• The distinguishing feature is " evidently concerned with "how" specific cognitive data is actually presented rather than "what" is presented". The board indicates that, in order to decide whether the feature (of how the information is presented) is technical (and can provide inventive step) the main issue to be established is "whether the underlying user interface together with the manner in which cognitive content is presented credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process. 
• The board judges that the feature relates to presentations of information as such, i.e. to a non-technical feature, which has to be disregarded in the assessment of inventive step.
• Of interest, the Board refers to T decisions with the Board number added (e.g. T 1749/06-3.4.03). Possibly the Board wishes to indicate that some of the cited decisions are of other Boards. I don't believe it is common practice to cite T decisions in this way.

EPO T 1802/13 - link

2.1 Novelty and inventive step

In the board's judgment, present claim 1 does not meet the requirements of Article 56 EPC 1973, for the reasons set out below.

2.1.1 The board does not see any prejudicial errors in the assessment of inventive step as conducted in the decision under appeal, having regard to prior-art documents D1 and D2 (cf. Reasons 3 and 4).

2.1.2 Although the impugned decision relied on D1 as closest prior art, the board agrees with the appellant that document D2 may likewise be regarded as a starting point for assessing inventive step. In particular, it discloses the following features of present claim 1:

A computerised system ("DBS system") comprising:
a) an imaging data storage circuit adapted to store imaging data corresponding to an image of an anatomic volume of a patient (see e.g. Fig. 1);
b) a processor circuit, coupled to the imaging data storage circuit, configured to
b1) generate a model of brain tissue ("diffusion tension imaging DTI") that represents a non-uniform spatial distribution of tissue conductivity including inhomogeneous and anisotropic tissue conductivity, wherein the model includes a representation of an implanted electrode leadwire ("3-dimensional finite element models of the Medtronic 3387 DBS lead") (see abstract; page 590, left-hand column, second and third paragraphs);
b2) calculate, for each of the set of stimulation parameters (e.g. "stimulus amplitude") and prior to use of an electrode leadwire in accordance with the respective set of stimulation parameters, a predicted volume of activation by calculating a second difference ("Delta**(2)Ve") of the electric potential distribution ("Ve") produced by the electrode leadwire ("DBS electrode") using the model of brain tissue which represents the non-uniform spatial distribution of tissue conductivity (see e.g. page 590, right-hand column, last paragraph; page 592, right-hand column, second paragraph; Fig. 1B);
b3) register the image of the anatomic volume of the patient to an atlas of the brain to create a patient-specific atlas of the brain tissue (see e.g. page 590, right-hand column, lines 32-35; Fig. 1B);
c) a computer display, coupled to the processor circuit, configured to display on the computer display a map ("FEM VR Map") in which the electrode leadwire and the predicted volume of activation are displayed (see Fig. 1B).

2.1.3 As regards feature c), it is apparent to the board that the "FEM VR Map" shows the DBS electrode and the modelled volume of activation, while the screen relating to "Human DTI" displays the patient's brain atlas (see e.g. caption of Fig. 1B: "... The right panels of the top row shows[sic] the volume ratio ... for the entire axial slice (far right) and the ... region that was used in the finite element model (middle right)"). Thus, those displays indeed do not directly and unambiguously disclose the superimposition of the electrode leadwire and the predicted volume of activation on the patient's brain atlas as called for by claim 1. 

Consequently, the sole difference between present claim 1 and the disclosure of D2 is that
i) a map is displayed in which the electrode leadwire and the predicted volume of activation are superimposed on the patient-specific atlas of the brain tissue.

2.1.4 The focal question is now whether distinguishing feature i) has a technical effect or whether it relates merely to presentations of information as such within the meaning of Article 52(2)(d) and (3) EPC. In this context, the board notes that the superimposition of both the monitored data ("electrode leadwire") and the calculated data ("predicted volume of activation") on the patient's brain atlas is evidently concerned with "how" specific cognitive data is actually presented rather than "what" is presented.

2.1.5 The appellant submitted that the case law of the Boards of Appeal relating to presentation of information had "relied heavily on the understanding that it is important how the data is displayed not what is displayed" (cf. appellant's letter dated 7 April 2016, first page, last paragraph). The appellant seems to rely for authority on the conclusions drawn in T 1749/06-3.4.03 of 24 February 2010 (see Reasons 4.1.3), which are further elaborated by reference to the corresponding PCT provisions in recent case T 651/12-3.4.03 of 14 April 2016 (see Reasons 3.2, page 15, last paragraph to page 16, second paragraph).

In that regard, the board recalls that e.g. T 1143/06-3.5.01 of 1 April 2009, relied on by several boards, states that "a feature which relates to the manner how cognitive content is conveyed to the user on a screen normally does not contribute to a technical solution to a technical problem. An exception would be if the manner of presentation can be shown to have a credible technical effect" (see Reasons 5.4, emphasis added by this board). This is also reflected (almost verbatim) in the Guidelines for Examination in the European Patent Office (see G-II, 3.7, second paragraph e.g. in the version of November 2016).

Similar to the issue of "what" is presented (see e.g. T 336/14-3.5.05 of 2 September 2015, Headnote), the board finds that - regarding the technicality of the manner in which (i.e. "how") information is presented - the main issue to be established is whether the underlying user interface together with the manner in which cognitive content is presented credibly assists the user in performing a technical task by means of a continued and guided human-machine interaction process (basically related to the question "for what purpose" the content is presented).

This was the case in T 928/03-3.5.01 of 2 June 2006, cited by the appellant in its letter dated 7 April 2016 (cf. second page, first paragraph), where it was held that displaying, in an interactive video soccer game, guide marks indicating the direction in which the football is to be passed by the active soccer player at predetermined locations of the screen solved the objective technical problem of resolving conflicting technical requirements, namely that (1) a portion of an image is desired to be displayed on a relatively large scale and that (2) the display area of the screen is not too small to show a complete zone of interest (cf. Reasons 4.3). In the context of distinguishing the claimed subject-matter from the prior art by the manner in which information is presented, a technical effect and a contribution to inventive step were also acknowledged in recent cases T 1375/11-3.4.03 of 31 March 2016 (relying on the problem of improving ergonomics and user-friendliness in an online gambling system including physiological considerations; see Reasons 4.3) and T 1715/11-3.2.04 of 22 July 2015 (relying on the problem of facilitating man-machine interactions; see Reasons 3).

2.1.6 Coming back to the present case, in the appellant's opinion, distinguishing feature i) had the technical effect of "lowering the cognitive burden of a user", resulting in a more efficient man-machine interface (cf. statement setting out the grounds of appeal, fourth page, last paragraph), while the objective problem addressed by feature i) was the "provision of an improved system that provides a more efficient method of selecting the electrode parameters for DBS" (cf. appellant's letter dated 7 April 2016, first page, fourth paragraph).

2.1.7 However, it is established jurisprudence of the Boards of Appeal that "lowering the cognitive burden of a user" per se cannot in principle be considered to be a technical effect (see e.g. T 1741/08-3.5.06 of 2 August 2012, Reasons 2.1.6; T 1539/09-3.5.06 of 18 July 2013, Reasons 4; T 1237/10-3.5.07 of 16 October 2015, Reasons 5.4). Nor is it derivable from present claim 1 - beyond mere speculation - that it credibly brings about the technical effect of accurately predicting the electrodes' properties and providing that information to the surgeon in an efficient manner (contrary to the appellant's assertion in the statement setting out the grounds of appeal, page 5, eighth paragraph).

Rather, the board holds that feature i) corresponds to presenting cognitive content which addresses solely the user's mental process instead of credibly and causally assisting the user (surgeon) in performing the task of neurosurgical operations via a continued and/or guided human-machine interaction process. In particular, the board finds that the mere fact that two specific types of information (i.e. "electrode leadwire" and "predicted volume of activation") are presented in a superimposed manner with regard to another type of information ("patient-specific atlas") is not sufficient - contrary to the situation in case T 928/03-3.5.01 - to conclude that the underlying system is thereby indeed improved or that the corresponding method is more efficient. Rather, this remains mere speculation. For example, such a superimposition of different data may arguably - depending on the display resolution and/or the user's (surgeon's) cognitive capabilities or preferences - detrimentally affect the comprehensibility and usability of the data presented and thus might even deteriorate the efficiency of selecting the optimal DBS electrode parameters.

Accordingly, the board judges that feature i) relates to presentations of information as such, i.e. to a non-technical feature, which has to be disregarded in the assessment of inventive step according to the established jurisprudence of the Boards of Appeal (see e.g. T 641/00-3.5.01, OJ EPO 2003, 352, first headnote).

2.2 In view of the above, the main request is not allowable under Article 56 EPC 1973.