- In this well written decision in an examination appeal, the Board finds lack of inventive step for the claims of this application directed to online poker.
- " The description explains that the principal aim of the invention is to reduce the time players spend waiting. [] This aim is achieved by pooling players from a plurality of online casinos. " " In CardinalCommerce [T 1463/11 of 27.04.2017] , the Board stated that the notional business person (more generally, the non-technical person) cannot normally require even notorious technical means. The reason is that the inventor may have obtained a technical effect using technical means, even notorious means, in a way that would not have been obvious to the skilled person. That is what a patent is meant to reward. To allow the notional business person to prescribe technical means would be to foreclose any discussion of whether they were used in a technically non-obvious way. This should not lead to a proliferation of patents for technically trivial inventions; they would be obvious to the skilled person. [The applicant] submitted that, in applying the Comvik approach, particularly in the light of CardinalCommerce, the business person cannot make requirements that have technical implications. The Board disagrees."
Reasons for the Decision
Introduction
1. The invention is about online gambling. It is described in terms of poker, but it could be any zero-sum game with (monetary) winnings and losses. In the variant considered, a game requires at least four players and has a maximum of eight. If there are only three players, they will have to wait for a fourth. If there are nine, one will be left waiting. The description explains that the principal aim of the invention is to reduce the time players spend waiting.
2. This aim is achieved by pooling players from a plurality of online casinos. That is based on a number of assumptions. A player in a running game is not removed and placed in another game with other players. Poker players probably do not like that sort of thing. As a result, if the total number of players leaves a remainder of 1, 2, or 3 on division by 8, then there will be 1, 2, or 3 players left to wait. The likelihood of that happening does not decrease as the number of players increases, but players do tend to arrive more frequently, and so the waiting time does decrease.
3. The invention provides a "gaming server" with which various online casinos communicate. The players access their online casino as usual, but may join a game on the gaming server. They pay their stakes to, and receive any winnings from their home casino. Thus, the gaming server has to coordinate the collection of stakes from and payments of winnings to the various online casinos.
4. The invention involves technical and non-technical considerations. The COMVIK approach (T 0641/00, Two identities/COMVIK, OJ 2003, 352), especially in the form discussed in T 1463/11, Universal merchant platform/Cardinalcommerce, raises the issue of how the non-technical aim of reducing waiting time is translated to a (technical) invention and whether there comes a point at which technological issues so predominate that further non-technical considerations are no longer separable from them.
The admission of the main request and of auxiliary request 1
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The approach to the assessment of inventive step
8. It is well established that non-technical elements do not contribute to inventive step. That is the basic principle of T 0641/00, Two identities/COMVIK, OJ 2003, 352. The Board recently reiterated this principle in T 1463/11, Universal merchant platform/CardinalCommerce, not published in the OJ EPO ("CardinalCommerce")), a case to which the appellant referred in its arguments.
9. Comvik sets out an approach to ensuring that non-technical issues do not influence the decision on inventive step. It is to include the non-technical elements in the statement of the technical problem to which the skilled person seeks a solution. Most often, this is in the form of non-technical requirements. In CardinalCommerce, the Board stated that the notional business person (more generally, the non-technical person) cannot normally require even notorious technical means. The reason is that the inventor may have obtained a technical effect using technical means, even notorious means, in a way that would not have been obvious to the skilled person. That is what a patent is meant to reward. To allow the notional business person to prescribe technical means would be to foreclose any discussion of whether they were used in a technically non-obvious way. This should not lead to a proliferation of patents for technically trivial inventions; they would be obvious to the skilled person.
10. The appellant submitted that, in applying the Comvik approach, particularly in the light of CardinalCommerce, the business person cannot make requirements that have technical implications. The Board disagrees.
11. The difference between requiring technical means on the one hand and requiring something which has technical implications on the other hand becomes clear when looking at the following example.
A reader or author or publisher might form a desire to make a second copy of a particular book. Now, a book is certainly a technical artefact, but it is also an art object. The reader who wants to give the book as a gift is not concerned with technical issues. He can think of the book and formulate his desire purely in terms of the book as art object. To fulfill the desire, something technical will have to happen. Thus, he requires something which has technical implications. That is not an impediment under the CardinalCommerce approach.
12. CardinalCommerce warns against allowing the notional business person to require technical means and thus to take technical decisions. In contrast, by requiring a second copy, the reader is not pre-empting any technical decision. The skilled person gets to make all technical decisions involved in making something that falls within the non-technical definition of "book" qua art object.
The main request and auxiliary request 1
13. It is convenient to consider these requests together, because the differences between the two versions of claim 1 do not affect the outcome in respect of inventive step The final comments in this section explain why that is.
14. The starting point, in both cases, is an online casino in which players play games such as poker. The appellant argued that there was no evidence that there was more than one online casino at the priority data, but the Board finds that untenable. It would make no difference, however, if there had been only one. The decision to provide another online casino is not a technical one and would not change the situation in respect of an inventive step.
15. There is a problem with the online casinos in this starting configuration. It is that some players have to wait. In the poker scenario as described in the application, since a game can only start when there are at least four players, the first arriving three out of every eight players will be in that position. This is not a technical problem, but rather a problem of the player or, as presented in the application, of the casino owner. That is, it is a gambler's or business person's problem.
16. The appellant submitted that the casino owner could formulate the requirement of finding more players, but could not formulate the requirement that players in different casinos be pooled because that would have technical implications. It would require a change in the network, in the casino machines, and in the provision of a gaming server.
17. It is true that, if players are to be pooled, some changes will have to be made. The casinos must be modified to allow the pooling, for example. However, the requirement itself is not a technical matter. The owner can formulate the request to allow the waiting users of several casinos to play together without any understanding of what technical issues that will involve. Equally, the appellant's proposed solutions to the non-technical problem if increasing the number of available players (advertising and referring to another casino) are not technical solutions. They are still within the domain of business.
18. When players of different casinos play together, there inevitably arises the question of collecting stakes and paying winnings. There are contractual questions. Again, these are not technical matters. It is for the casino owners to decide amongst themselves what business model they want to adopt and where contractual obligations will lie. It is then for the technically-skilled person to take the decisions on how to provide the technical infrastructure to support that, if possible.
19. The Board, therefore, considers that the skilled person, starting from a plurality of online casinos, has the task of providing means for inter-casino games, in which payments are via the players accounts in their home casinos.
20. To arrive at the invention, the skilled person would have to provide a gaming server, portals that can communicate with the gaming server via a network, user access facilities, a register of players, wagering means, discrimination means, an administration facility and a clearing account facility.
21. The gaming server runs the same games and admits players in the same way as the online casinos. That much would have been obvious. The way in which players access the gaming server is different, but follows from the non-technical requirements.
22. The portals are the previous online casinos, but with some adaptation (in auxiliary request 1, they are restricted to "online casino websites"; the main request is broader, but online casino websites are covered). They must communicate with the gaming server, and they must collect stakes and pay winnings as determined by the gaming server. But those follow naturally from the non-technical requirements. The skilled person would actually have many decisions to take regarding the means of communication and of providing secure payment, for example, but the claim is silent on such issues.
23. The user access facilities are the terminals the players use. They provide access to the gaming server via the portals. But that is just what the non-technical requirements say; the terminals need be no different from those in the starting configuration.
24. The register of players identifies the portal through which a player accesses the gaming server. As players' accounts are with their home casinos, the gaming server must have some means of informing the home casino when payments are taken or made. The Board considers that a list of players with their home casinos would have been an obvious choice.
25. The wagering system and the discrimination means follow naturally from the choice of game that the gaming server allows.
26. The administration facility allows access to games or not, depending on the number of current players. That is just what the prior art gaming machines did and it would be obvious for the gaming server to do the same. The game itself has not changed.
27. The clearing account facility follows from the non-technical choice to use the players' payment accounts with the home casinos.
28. As a result, the Board finds that the subject-matter of claim 1 according to the main request and to auxiliary request 1 does not involve an inventive step (Article 56 EPC) and cannot be allowed.
29. It is necessary to say something about the differences between the two versions of claim 1. One is that the auxiliary request restricts the portals to online casino websites. This has already been taken into account (see point 22, above).
30. The second difference lies in the definition of the conditions under which new game instances are created. The Board indicated that it saw some issues of clarity in the way the main request formulated those conditions. There is, however, no disagreement as to the appellant's intentions: when all current games are full, a new game is created. The decision on inventive step is not affected by this. It is just what the game dictates and the invention does not change the game.
Auxiliary request 2
31. Claim 1 is worded differently from the version in the main request and auxiliary request 1, but it defines a broader version of the same system. The conditions under which a new game instance is created are not defined, players' access in relation to the total number of players is not defined, and the clearing accounts are not defined.
32. However, the system defined by claim 1 according to auxiliary request 1 falls within the broader scope of claim 1 of auxiliary request 2, which, therefore,cannot be allowed for the reasons already given.
Auxiliary request 3
33. This version does have the clearing account, and additional features relating to a credit account for each portal casino.
34. As with the clearing account, the credit accounts are a matter of legal and business relationships between the various casinos and the operator of the gaming server. Those are not technical issues and do not affect the outcome in respect of inventive step.
Auxiliary request 4
35. This version has the clearing account, the credit accounts, and the conditions under which new game instances are created and players allowed access.
36. The system defined by claim 1 differs from that of auxiliary request 1 only by the credit accounts. The request, therefore, cannot be allowed for the same reasons as auxiliary request 3.
Order
For these reasons it is decided that:
The appeal is dismissed.
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