Software patents for emerging tech since 2008

Kein Patentschutz für nicht-technische Innovationen (T0218/11)


In der Entscheidung T 0218/11 (Self-service checkout terminal/NCR) vom 14. Januar 2014 war die Grundfrage — wie so oft -, welche Merkmale einer Erfindung zur erfinderischen Tätigkeit beitragen können.

Es ging um einen Verkaufsautomaten, mit dem der Kunde selbst Artikel abwiegen und dann bezahlen kann. Dabei sollte der Verkaufsvorgang abgebrochen werden, falls (absichtlich oder ungewollt) eine zu große Diskrepanz zwischen den gescannten Artikeln und dem gemessenen Gewicht erkannt wird. Die Anmeldung schlägt vor, eine Toleranzschwelle zu implementieren, die abhängig von der Vertrauenswürdigkeit des Kunden ist.

Anspruch 1 lautete:

“A method for personalizing security conditions for a customer using a self-service checkout terminal (10) to conduct a transaction on the terminal, comprising:
 maintaining a trust level value assigned to a customer in a database (50) accessible by the terminal (10);
 obtaining the trust level value from the database (50) for a customer when that customer commences a transaction at the terminal (10); and
 adjusting the manner in which the transaction occurs as a function of the customer’s trust level value; characterised by
 determining at the terminal (10) whether an error has occurred in the customer’s use of the terminal (10) during the transaction, wherein:
 the adjustment of the manner in which the transaction occurs includes adjusting the number of errors by the customer that will be tolerated before the transaction is interrupted.”

Die Kammer 3.5.01 verneinte die erfinderische Tätigkeit anhand des COMVIK-Ansatzes:

Aus der Begründung

Introduction to the invention

[5.] The invention concerns self-service checkout terminals. Those are terminals at which a customer can, in principle, make purchases without human assistance. The description discusses a particular type of such terminals that provides for the weighing of items and a check on the weight of items being placed in a bag. Claim 1 according to none of the requests is by any means limited to terminals of this form, but it is useful to bear it in mind, not least because it is what the application acknowledges as the starting point for the invention. In this form of terminal, if there is a large discrepancy between the weight of the items scanned and the weight of items placed in the bag, then the automatic processing of the transaction is interrupted and some form of human intervention can take place.

[6.] Underlying the invention is a problem with such terminals. Some customers are inexperienced at using them and tend to make a lot of mistakes; some deliberately seek to take (criminal) advantage. If every customer is subject to very stringent controls, so that, say, even a single, minor error ends the transaction, then many transactions will be interrupted, there will be many interventions, and customers will feel frustrated. If customers are subject only to light controls, the risk for the shop can be high. The invention addresses this by treating people differently depending upon how trustworthy (which covers both honesty and competence) they are seen to be. Highly trusted customers are allowed to make more errors before the transaction is interrupted, while untrusted customers will be allowed fewer.

The main request

[7.] The Appellant and the Examining Division both took, as starting point for their considerations of inventive step, a network of data-processing terminals connected to a database. In the Board’s view, that might be a possible starting point but it is not the only one and it is susceptible to the appellant’s argument that the skilled person would have had no incentive to modify the terminals, which are general-purpose machines, in such a way as to produce self-service checkout terminals. While that is not necessarily a knock-down argument, it seems more natural to the Board to consider the skilled person starting from a self-service checkout terminal, as set out in the application itself.

[8.] From that starting point, the invention differs in that it adds a record of a level of trust, kept in a database, and in that it makes the number or tolerated errors variable, depending on the level of trust. It is worth noting that the prior art already determines whether errors have occurred and interrupts the transaction if there are too many (see paragraph [0006] of the published application).

[9.] Underlying the invention, from this point of view, is the following problem. A retailer wants to intervene quickly where it is necessary (whether because the customer is perhaps dishonest or because he needs help using the machine or for some other reason), but does not want to intervene too often. He wants to take account of the fact that people are not equally reliable. In the Board’s judgment, that is not a technical matter. A shopkeeper, without any technical means at all, may want to treat people differently depending on how much trust he places in them.

[10.] Thus, the Board disagrees with the appellant’s argument that the decision to tolerate different numbers of error is technical in itself. That might possibly be the case if the errors are specific to the way a particular machine operates, but claim 1 places no limitation on the sorts of error involved.

[11.] As a non-technical aim, it is legitimate to consider it as given to the technically skilled person as a requirement. That is the approach set out in T 0641/00, Two identities/COMVIK, OJ 2003.

[12.] Thus, in the Board’s judgment, the technically skilled person is faced with the task of modifying the self-service checkout terminals so as to keep track of how trusted different customers are, and so as to interrupt transactions earlier for those customers who are less trusted, and later for those that are more trusted.

[13.] Interruptions occur in the prior art when too many errors have been detected. There was therefore a choice between making the number of errors variable, or introducing some new criterion. That is a choice the shopkeeper might make. Thus, it does not contribute to inventive step.

[14.] The technically skilled person is obliged to provide means for keeping track of how much trust is placed in an individual customer. Some sort of storage is inevitable. Claim 1 places no limitation on the database other than its ability to allow a level of trust to be stored and retrieved. In the Board’s judgment, whatever storage means the skilled person provided would qualify as a database under such a broad definition.

[15.] In the Board’s view, therefore, the technical features of the invention either belong to the prior art (the self-service checkout terminal), would be inevitable given the technical problem faced by the skilled person (the storage of a trust level in a database), or would not contribute an inventive step (the adjusting of the number of tolerated errors).

[16.] As a result, the subject matter defined by claim 1 does not involve an inventive step (Article 56 EPC 1973), and the main request cannot be allowed.

Link zur Entscheidung T 0218/11 (Self-service checkout terminal/NCR).

About Bastian Best

Bastian Best

I'm a European patent attorney specializing in software patents and a partner in one of the most renowned IP only firms in Europe.

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