Patenting graphical user interfaces in Europe
One of the biggest challenges in informatics is the interaction between humans and machine. Much research has gone into improving human-machine interactions to improve the user experience and also the reliability of the communication between the computer system and the user, as an incorrect entry can have catastrophic results. The question therefore arises as to whether such human-machine interfaces can be patented. The answer – as so often – is that it depends on the type of the interface developed and often also on the language of the claims and/or the type of innovation that should be the subject of the patent.
Under the European Patent Convention, features relating to the presentation of information are excluded from patentability. The argument is that any such features, which are defined solely by the content of the information, cannot have a technical character and are therefore excluded from patentability, as patents can only be granted for technical subject matter. This argument applies whether the feature is claimed as a presentation of the information per se, such as visual displays, or as relating to processes and apparatus for presenting information. The European Board of Appeals has confirmed, in several cases, that any feature which relates to the manner in which “cognitive content” is conveyed to the user, such as the arrangement of images, on a screen normally does not contribute to a technical solution to a technical problem and cannot therefore be patented. An exception would be if the arrangement or manner of presentation can be shown to have a credible technical effect (T 1741/08, T 1143/06).
With respect to user interfaces, the EPO’s guidelines for examination are clear that the colour, shape, size, layout, arrangement of items on the screen or the information content of the message are unlikely to be patentable. Any features that combine with steps or means for interacting with the user can be patentable (assuming that such feature are new and inventive, of course) and also features concern technical information, such as the internal states of machines, can be the subject of a patent. The exclusion of the presentation information applies in other words only when the claim is directed to „what is displayed“. If the claim is directed to „how the information is displayed“, then a patent might be granted.
The Boards of Appeal have over the years given examples in which such a technical feature may be present. For example, a communication system using a particular code to represent the characters (e.g. pulse code modulation) would be seen as being technical and therefore at least open to grant of a patent. A measuring instrument designed to produce a particular form of graph for representing the measured information would also be patentable. In this latter case, the displayed measured information would not be patentable, but the patent application would need to be directed to the measuring instrument. Finally, a computer data structure (see T 1194/97) defined in terms which inherently comprise the technical features of the program which operates on said data structure (assuming the program itself, in the particular case, to be patentable) would also be patentable.
As always, when assessing the exclusion from patentability the subject-matter of the claim has to be considered as a whole and the technical contribution must be taken into account. When deciding if a feature relating to the presentation of information is technical or not, what has to be considered is whether or not it contributes to solving a technical problem. The fact that mental activities are involved does not on its own render the subject-matter non-technical (T 643/00). However, a feature that solely addresses a user’s subjective (visual) preferences does not solve a technical problem (T 1567/05).
In the context of automated systems, in particular computers, giving visual indications of an automatically detected event occurring in the system itself as a prompt for human interaction with the system, e.g. to avoid technical malfunctions, is usually regarded as making a technical contribution. On the other hand, a visual indication aimed exclusively at the mental activities of the viewer, in particular at preparing the relevant data for a non-technical decision-making process by the user as the final addressee, is usually not regarded as making a technical contribution (T 756/06).
The distinction between what information is displayed and how the information is displayed is a narrow distinction and there is probably in many cases some degree of overlap. One example can illustrate this. In a patent directed to the generation of a display of a simulation model, which incldued objects linked by relationships, it was argued by the patent applicant that the technical problem was the ease in which a user could construct the simulation model. The Board of Appeal disagreed and decicded that an improvement in the comprehension of the model was a purely mental effect and so the problem and the claimed solution were not technical. The solution was merely a choice of where and in what form certain information would be displayed (T 1073/06).
Experience shows that success in getting a patent often depends on the way in which the claims are formulated and the description drafted. The emphasis needs to be place on how the information is generated, rather than the display of the information.
This short article is only a brief introduction to this difficult subject. Please feel free to contact us if you have any detailed questions: firstname.lastname@example.org