T 0708/21 - The technical problem of matching foundation and skin tone

Key points

•  "The invention is about recommending make-up foundations that match a person's skin tone, [0002] and [0003] of the published application."
• The issue is inventive step. 
• "Method for selecting a foundation intended for a person, comprising the steps of:

  - acquiring (100) an image of a complete view of a person's face in a controlled lighting environment,  ... [digitally processing data and] presenting (420) to the person the foundation(s) comprised in the personalized color matrix"

• The Board does not comment on whether the method is industrially applicable. The Board dismisses the appeal of the applicant against the refusal of the application for lack of inventive step. Therefore there was no need to comment on Art. 57. Perhaps it was not even an objection of the Examining Division. Still, I think that in 1973, or perhaps 20 - 30 years ago, a method of "recommending make-up foundations that match a person's skin tone" would perhaps not be treated as an industrial method. 

• Regarding inventive step: "Therefore, the Board considers that the differences may be assessed separately for inventive step, as the examining division did in the decision under appeal.

• 2.6.1 Concerning feature 1), lightness and hue define a 2D colour space that is simpler than the 3D colour spaces mentioned in D1 (HSV and RGB), yet still suitable for representing human skin tones and foundation shades (see also page 10, first paragraph of the published application). Therefore, the Board considers that the technical problem solved by this feature is to find a simpler colour space for representing skin tones and foundation shades."

• "Hence, the skilled person seeking a simpler colour space would apply the teaching of D5 to the method of D1, and thereby arrive at feature 1) in an obvious manner."

• "The appellant submitted that human skin appeared desaturated under illumination, while suitable foundations typically had higher saturation levels to create a more radiant effect. If saturation was taken into account in the matching process, the selected foundations would be less saturated, resulting in a duller appearance, which was undesirable. By ignoring the saturation from the colour matching, the invention eliminated unwanted noise and provided more relevant matches. During the oral proceedings, the appellant supported this argument with experimental data showing significant differences between the saturation levels of skin and foundation measurements, and the impact of saturation on the recommended products."
• "However, according to the jurisprudence of the Boards of Appeal, an alleged technical effect cannot be considered for inventive step unless it is at least hinted at in the original application, or can be deduced by the skilled person from the application as filed considered in relation to the nearest prior art (Case Law of the Boards of Appeal, I.D.4.4.3 b, second paragraph). This is not the case here since the application as filed does not suggest that saturation is a noise factor and that ignoring it leads to more accurate results. It merely states that lightness and hue are chosen for simplicity, and that saturation can be disregarded since it is less important for foundation colours (page 10, top). Simplifying a process by removing irrelevant data does not imply or suggest an improvement in accuracy."


• Is this an application of G 2/21, headnote 2?

EPO 

The link to the decision  can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t210708eu1