By Hugh Dunlop
Graphical User Interfaces (GUIs) lie on the boundary of what is patentable in Europe, as they can fall foul of the computer program exclusion or the presentation of information exclusion. In a recent decision of the UK Intellectual Property Office (O/246/17 Fisher-Rosemount Systems’ Application), a patent application was allowed for a GUI used to control a process control system such as a chemical or petroleum installation.
The UK Patents Court has developed five “signposts” from HTC v Apple, to apply when considering whether a computer program makes a relevant technical contribution. The Applicant in Fisher-Rosemount argued that the first of these signposts was applicable.
Five helpful signposts, from HTC v Apple, to apply when considering whether a computer program makes a relevant technical contribution:
- whether the claimed technical effect has a technical effect on a process which is carried on outside the computer.
- whether the claimed technical effect operates at the level of the architecture of the computer - that is to say whether the effect is produced irrespective of the data being processed or the applications being run.
- whether the claimed technical effect results in the computer being made to operate in a new way.
- whether the program makes the computer a better computer in the sense of running more efficiently and effectively as a computer.
- whether the perceived problem is overcome by the claimed invention as opposed to being merely circumvented.
Critical to the question was an element of the claim that read:
Data is receivable by [an] executable graphical element such that an updated control algorithm or data is [manually or automatically] generated and transmitted to the process plant for execution or use in controlling the process plant based on the received data.
The Hearing Officer concluded that changing which “gadgets” (graphical elements) are displayed has a direct causal link to the control of the process plant. This was so whether the data generated and transmitted was generated automatically or manually. The contribution was more than the presentation of information as such, since reconfiguring the display automatically affects the control of the plant. Accordingly, the invention was not excluded from patentability.
Fig. 12 from GB patent application 1505495.0: “a display, Graphical Element Module or Gadget may contain dynamic behavior to allow the operator to see the process data, navigate through the process data, or change the process data.”
In Autumn 2013 Patent issues, we discussed EPO Guidelines on the subject of GUIs. The EPO applies the “Comvik” approach by excluding the ease of use of a GUI as merely “easing the cognitive burden” and as therefore being non-technical. EPO examiners consider whatever other technical contribution may remain and ask whether this is inventive under the problem-solution approach.
Although the law is the same before the UKIPO and the EPO, the approach taken by the UKIPO is governed by the interpretation imposed by the UK Patents Court, which has a slightly different approach to the computer program exclusion. Before considering inventive step, the UKIPO applies a per se test for exclusion (referred to as the Aerotel test and discussed in Spring 2007 Patent issues).
This per se approach can make the UKIPO a difficult forum for patenting computer programs, but in this decision it can be seen that provided certain signposts are present, the per se hurdle can be overcome, and then the inventive step hurdle is much easier, meaning the UKIPO may in some cases be an easier forum than the EPO.
It may be noted, however, that in a parallel decision (O/455/17) relating to another patent application of the same applicant, the applicant presented a claim to a general method and system, within a GUI, of linking graphical representations of entities with graphical representations of related entities, to enable navigation within the GUI, arguing that it was not limited to process control systems. The Hearing Officer in that case was not persuaded that the contribution was at the level of the hardware-software interface. The contribution made by the invention was a way of linking of graphical representations of related process entities to allow the navigation between those graphical representations to occur. It was a contribution at the level of, and directed to, navigation in a graphical program environment. For this reason none of the “signposts” applied and the application was refused under both the computer program exclusion and the presentation of information exclusion.
For questions about this matter or related issues, please contact our Partner Hugh Dunlop (firstname.lastname@example.org).
Tuesday, October 17, 2017