German software patents on graphical user interfaces?

Patent applications on new types of GUIs oftentimes run into trouble in Germany because the examiners consider them to be presentation of information. As the avid reader will know, the presentation of information is one of the items on the list of subject-matters excluded “as such” from patent protection.

In the recent Image Stream decision (BGH Bildstrom — X ZR 37/13), however, the Federal Court of Justice (FCJ) held that the exclusion is overcome when the presentation of information serves the solution of a technical problem with technical means, thereby meeting the second hurdle of the German three-step approach. In addition, this decision is particularly remarkable because of its quite liberal understanding of the technical problem solved by the patent under consideration.

The Image Stream patent

The patent concerned the visual displaying of images of a body lumen captured by a swallowable capsule equipped with a camera. Such captured image streams comprising possibly thousands of still images can then be reviewed by medical personnel for diagnostic purposes.

Since the rate at which a human user can effectively review an image stream was said to be limited to around fifteen frames per second, the object underlying the patent was to enable a user to increase that rate without missing important information that may be present in any of the images included in the stream.

Claim 1 of the patent reads (English translation with emphasis added):

A method for displaying an image stream, the method comprising:

receiving images acquired by a swallowable capsule, the images forming an original image stream; and displaying simultaneously on a monitor at least two subset image streams, each subset image stream including a separate subset of images from the original image stream.

Fig. 2 of EP 1 474 927 B1

Accordingly, the idea underlying the patent under consideration was to split the captured image stream into two or more subsets, e.g., a first subset containing the still images 1, 3, 5, … and a second subset containing the still images 2, 4, 6, …. Both subset image streams can then be replayed simultaneously in different parts of a monitor, which according to the patent allows for analysing the overall image stream without missing important details at a higher overall replay rate.

What the court said

The Federal Patent Court had held that the claimed subject-matter has technical character (first hurdle) and does not fall under the exclusion from patentability (second hurdle). However, the invention was found to be rendered obvious, thereby failing to overcome the third hurdle.

The FCJ followed this assessment with respect to the first and second hurdles, but reversed the Federal Patent Court’s assessment of inventive step. While the technical arguments concerning inventive step are only interesting for this individual case, the FCJ took the opportunity to give some remarkable statements concerning the exclusion of “presentations of information” from patent protection, as outlined in the Image Stream decision’s headline:

Instructions relating to the (visual) presentation of information which do not primarily focus on the conveyance of particular content or its conveyance in a particular layout but on the presentation of image content in a manner that takes into account the physical characteristics of human perception and reception of information and are directed towards making possible, improving or making practical the human perception of the displayed information serve the solution of a technical problem with technical means.

In essence, the FCJ states that the conveying of specific information — i.e., certain information content — cannot be monopolized, whereas a technical teaching for enabling a human user to efficiently percept such information is accessible to patent protection. This distinction between “what is displayed” (excluded from patent protection) versus “how it is displayed” (not excluded) appears to bring the German jurisprudence basically in line with that of the Boards of Appeal of the European Patent Office (EPO).

Importantly, however, the FCJ’s decision seems to go even further: While the German Image Stream decision appears to assign a technical effect to an improved perception of the information by the user’s mind, such a psychological effect on a user’s mind is seen at least by some EPO Boards of Appeal as “breaking the chain” of technical effects necessary to establish patentable subject-matter.

Does that help software patent applicants?

Probably yes! For the applicant of a German patent, the Image Stream decision gives room to argue that a presentation of information is indeed technical in nature when it is “content neutral” and even when it (only) takes into account the physical characteristics of human perception, which should arguably be the case in many inventions relating to graphical user interface (GUI) design.

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