T 2314/16 - In order to come up with this idea (Influencers)

Key points

• This decision was given publication code [B] so I discuss it here. The appeal is about inventive step of software-related invention.  
• The Board, summarizing the invention: "In the invention, participating influencers (called users in claim 1) are each allocated a portion of an advertisement banner displayed on a web site []. The user areas are not visible to the visitor of the web site; the visitor just sees an advertising banner. When the visitor clicks on the banner, the user whose portion was clicked on gets a reward. Over time, the rewards will be distributed according to the sizes of the image portions. The idea is to allocate the partial areas such that the reward distribution rates match the degree of contribution of each user to the advertising of the product or service."
• As a comment, the priority date of the application is in 2010 and Google Trends suggest that the term 'influencer' was not often used in 2010 (note, Instagram was founded in 2010). The application indeed does not use the term ‘influencer’ at all. Even though the term existed in 2010, I'm not sure if it was used in the same sense as now. In particular, I think influences nowadays earn money in a different way (namely, paid posts on their social accounts) than envisaged in the patent application. 
• See also T1294/15, same applicant, directed to "an apparatus for dividing a reward between a content manager and an introduction page manager", but Board 3.4.03 (denying inventive step).
• The Board acknowledges inventive step. “The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, [are] based on technical considerations of the web page system. The Board agrees with the appellant that the allocation of users to partial image areas is not within the domain of the business person [of the CardinalCommerce approach, see below]. In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works.” Therefore the feature is technical under the Comvik approach.
• The Board also reviews the case law framework for mixed inventions under the Comvik approach.  “In T 1463/11 [CardinalCommerce], the Board introduced the concept of the notional business person to help separate business considerations and technical considerations. The business person, who is just as fictional as the skilled person in Article 56 EPC, may formulate business requirements but will not include any technical matter. This approach ensures that, in line with the Comvik approach, all the technical matter, including known or even notorious matter, can contribute to inventive step and is therefore considered for obviousness.”
• The Board also finds the solution to be inventive. “ Starting from the HTML server-side image map [feature of the HTML standard as described in D1] and given the problem of implementing the business requirement of distributing rewards to a number of users according to certain reward distribution rates, the Board judges that it would not have been obvious to assign users to partial areas of an image as in claim 1. Although the means for implementing this was available in HTML, there was no motivation for the skilled person to do so. ”

EPO Headnote
The specification of the business method ended with how to determine the reward distribution ratio. The features of dividing the advertisement display area into partial areas and allocating each partial area to a user such that when the partial area is clicked on the user gets a reward, were based on technical considerations of the web page system. It was not motivated by any business considerations. ... 
In order to come up with this idea, one needs to understand how a web site is built, and in particular how an image map works. Thus, this feature cannot be part of the non-technical requirements. Instead it is part of the solution that has to be evaluated for obviousness. (See point 2.10 of the reasons) (ellipsis in the original). 

T 2314/16 - https://www.epo.org/law-practice/case-law-appeals/recent/t162314eu1.html

decision text omitted.