Key points
- This is an examination appeal, i.e. an ex parte case.
- Claim 1 is directed to: 'A system for representing symptoms and symptoms alleviation, comprising: a processor; a head mounted virtual reality display; and a memory operatively coupled to the processor and configured for storing data instructions that, when executed by the processor, cause the system to perform a method, ..."
This is not a second medical use claim, but by way of the software rule for novelty, the method is still a limiting feature of the claim.
" The board agrees with the appellant that, among the cited prior-art documents, document D2, in particular Embodiment 2 ("Pain Management") disclosed in paragraphs [0047] and [0048], constitutes the most suitable starting point for assessing inventive step. The appellant argued that the distinguishing features of claim 1 over D2 were that [in claim 1] a "second digital model" was created for displaying a "symptom" [] and that a "third digital model" was created for displaying an "alleviation or removal of said symptom" [on the VR display]. It submitted that these distinguishing features had the technical effect of pain reduction and solved the objective technical problem of achieving an improved virtual reality system for reducing chronic pain."
" although claim 1 is silent as to the details of the respective "digital models", the board, in the appellant's favour, accepts the technical effect and the objective technical problem as submitted by the appellant. Thus, the question to be answered next is whether the distinguishing features of claim 1 of the main request were obvious to the skilled person starting from D2."
Hence, the Board is willing to accept 'pain reduction' as a technical effect (further technical effect in the sense of G 1/19, it seems to me).
The Board considers the feature to be obvious. "document D2 also gives an overview of known techniques in the prior art, in which it discusses (paragraph [0015] ff.) prior-art techniques using virtual reality for the treatment of various conditions by exposure therapy. In this context, paragraph [0018] of D2 refers to D5 [US 5 546 943]
which "proposes use of a visualization system using a computer to provide a user with a view of their internal anatomy based on medical scan data. The user acts upon the information in an interactive virtual reality environment by using tools or other devices to diminish a visual representation of an ailment." (board's emphasis). Thus, although it may not have been the solution preferred by the authors of document D2, it was nevertheless an alternative solution known to the skilled person at the present application's priority date to display a visual representation of a "symptom" and to display its "alleviation or removal" for the therapy of that symptom, the choice of which would have been obvious. "
D5 did not use a VR display.
2. Main request - Inventive step (Article 56 EPC)
2.1 Claim 1 of the main request includes the following limiting features (board's labelling):
(a) A system for representing symptoms and symptoms alleviation, comprising: a processor; a head mounted virtual reality display; and a memory operatively coupled to the processor and configured for storing data instructions that, when executed by the processor, cause the system to perform a method, the method comprising:
(b) creating, by the processor, a first digital model for generating a sensory environment comprising first sensory signals, wherein the sensory environment includes an avatar of a user, wherein the avatar represents a body of the user; causing the head mounted virtual reality display to execute the first digital model to generate the sensory environment;
(c) receiving a description of a symptom, wherein the symptom comprises a chronic symptom, wherein the symptom comprises pain; creating a second digital model for the symptom, wherein creating the second digital model is based on the description of the symptom, wherein the second digital model causes generation of second sensory signals; causing the head mounted virtual reality display to generate the second sensory signals within the sensory environment based on the second digital model;
(d) creating a third digital model of an alleviation or removal of the symptom based on the first or the second digital models, wherein the third digital model causes generation of third sensory signals, wherein at least a portion of the second sensory signals and/or third sensory signals change continuously over time to human perception; and causing the head mounted virtual reality display to generate the third sensory signals within the sensory environment based on the third digital model, wherein the second or third sensory signals are generated on or within the avatar.
2.2 The board agrees with the appellant that, among the cited prior-art documents, document D2, in particular Embodiment 2 ("Pain Management") disclosed in paragraphs [0047] and [0048], constitutes the most suitable starting point for assessing inventive step. The appellant argued that the distinguishing features of claim 1 over D2 were that a "second digital model" was created for displaying a "symptom" (cf. feature (c)) and that a "third digital model" was created for displaying an "alleviation or removal of said symptom" (cf. feature (d)). It submitted that these distinguishing features had the technical effect of pain reduction and solved the objective technical problem of achieving an improved virtual reality system for reducing chronic pain.
2.3 Although the examining division did not question that pain reduction was in principle a technical therapeutic effect, it was not convinced that such an effect was credibly achieved in the case at hand. It essentially considered any effect achieved by displaying a virtual reality scene to a patient to be psychological, subjective and speculative, as opposed to the effect of analgesics. It questioned the causal relationship between virtual reality and pain reduction, in particular noting that some patients in the study group did not report any alleviation of their symptoms.
However, it is not surprising that not all patients respond in the same way to a therapy. Nor was there any objective reason to question whether virtual reality could lead to a therapeutic effect, especially in view of the fact that already the prior-art documents cited by the examining division, e.g. D2, disclose the use of virtual or augmented reality systems for therapeutic purposes. Therefore, although claim 1 is silent as to the details of the respective "digital models", the board, in the appellant's favour, accepts the technical effect and the objective technical problem as submitted by the appellant. Thus, the question to be answered next is whether the distinguishing features of claim 1 of the main request were obvious to the skilled person starting from D2.
2.4 The appellant argued that they were not obvious because document D2 principally taught away from displaying a symptom. Instead, the virtual reality system of D2 was designed as a relaxation system to distract patients from their symptoms.
However, document D2 also gives an overview of known techniques in the prior art, in which it discusses (paragraph [0015] ff.) prior-art techniques using virtual reality for the treatment of various conditions by exposure therapy. In this context, paragraph [0018] of D2 refers to D5 which "proposes use of a visualization system using a computer to provide a user with a view of their internal anatomy based on medical scan data. The user acts upon the information in an interactive virtual reality environment by using tools or other devices to diminish a visual representation of an ailment." (board's emphasis). Thus, although it may not have been the solution preferred by the authors of document D2, it was nevertheless an alternative solution known to the skilled person at the present application's priority date to display a visual representation of a "symptom" and to display its "alleviation or removal" for the therapy of that symptom, the choice of which would have been obvious. As mentioned above, not all patients respond in the same way to a given therapy. For patients who do not respond well to a first-line therapy, it is obvious to resort to alternative solutions which were already known in the prior art.
2.5 The appellant argued that D2, paragraph [0018] (and indeed D5 discussed in that passage) did not refer to the alleviation or removal of a "symptom" but of an "ailment". "Pain" was not an ailment but a symptom and the underlying ailment could even be unknown in some cases. Furthermore, the method of D5 mentioned in D2, paragraph [0018], was not a method for reduction of pain, but a method to stimulate a psychoneuroimmuno-logical response on the patient's side. Therefore, the skilled person would not have considered the alternative mentioned in D2, paragraph [0018] (or in D5). Instead, they would have considered supplementing the therapy with analgesics or substituting the "head-mounted virtual reality display" with hardware of better quality.
The board is not convinced by these arguments. The general distinction that the appellant makes between an "ailment" and a "symptom" may not be incorrect but it is unduly artificial in the context of self-guided therapy by virtual reality. In this context, patients seek medical treatment in the first place to end their "symptoms", such as pain. They generally do not know the underlying ailment until they receive a diagnosis and may never even know what their underlying "ailment" is. Document D2, paragraph [0015] ff. preceding paragraph [0018], discuss an exposure therapy for the treatment of a broad range of conditions including psychological conditions, phobias, anxiety and mood disorders, without making a distinction such as that suggested by the appellant.
Therefore, the distinguishing features of claim 1 over D2 were in fact already known in the prior art as a readily available alternative, which the skilled person would have used to modify the system of D2 without the need of any inventive activity.
2.6 Hence, the subject-matter of claim 1 of the main request does not involve an inventive step (Article 56 EPC).
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