Patents On Presentation Of Information Excluded In EU, But Germany Has Just Granted A Patent On A Graphical User Interface

from the not-promoting-innovation-as-such dept

Software patents are contentious, and nowhere more so than in Europe. Patenting there is governed by the European Patent Convention (EPC). Article 52 of the EPC reads as follows:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

Although the exclusion of software seems crystal clear there, the same Article adds the following regrettable rider:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

What exactly those two words “as such” mean in this context has been argued over for years. In practical terms, it has led to thousands of software patents being issued thanks to clever framing by lawyers that takes advantage of the “as such” loophole. According to this post on a blog that is called unashamedly “European Software Patents,” it seems that German judges have now gone even further, and granted a patent for a graphical user interface. That’s surprising, because the same EPC Article 52 explicitly excludes “presentations of information” from patentability. So how did the lawyers get around that? By using the “as such” loophole again. As the blog post explains:

the Federal Court of Justice (FCJ) held that the [EPC’s] exclusion is overcome when the presentation of information serves the solution of a technical problem with technical means

Just in case that legalese isn’t crystal-clear, here are details of the case considered by the German court. The patent dealt with the display of visual information captured by a swallowable capsule equipped with a camera. Apparently, these cameras produce information too rapidly to be useful for ready examination by the human eye. That problem was solved by showing only a subset of transmitted frames in one window, and different subsets in other windows. The idea is that an expert can scan several of these windows at once, since the images in each are changing relatively slowly.

Germany’s Federal Patent Court held this to be a pretty obvious idea (which it is), but the country’s Federal Court of Justice reversed that finding, and decided that the idea of breaking up a stream of images into subsets was terribly clever, and definitely eligible for patent protection. It also made a more general statement about the patentability of graphical user interfaces:

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.

It’s one of those how-many-angels-can-dance-on-the-head-of-a-pin distinctions beloved by patent lawyers, but which actually makes no sense. After all, it could be argued that any intelligible, well-designed presentation of information “takes into account the physical characteristics of human perception and reception of information,” and therefore is eligible for a patent. The latest decision by the German courts will doubtless lead to the granting of further, similarly-trivial patents, and to companies increasingly nervous about the use of even the simplest graphical user interface in their products for Germany. So how is that encouraging innovation or benefiting the public?

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Comments on “Patents On Presentation Of Information Excluded In EU, But Germany Has Just Granted A Patent On A Graphical User Interface”

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13 Comments
Anonymous Coward says:

In (minor) fairness to this patent, it is the breaking up of the stream that is the novelty, rather than specifically the GUI. If it wasn’t for the fact that what they have done is mind-bogglingly obvious and remarkably unoriginal then it may have been worth patenting within the spirit of what patents are there for

Dingledore the Flabberghaster says:

Re: Re: Re:

I think the OP’s original point is valid, and your “acting like a cock”-ness is unnecessary. From the description of what’s happening, it would appear that the transmitted feed from the capsule is going through processing not indifferent from a codec.

However, the article’s point still stands because the (English translation of the) patent specifies that it’s for a “method for displaying an image stream”, rather than a method for processing an image stream for subsequent display.

Ninja (profile) says:

This seems to me akin to patenting the round format of the wheels and tires. I mean you can improve your tire to be less resistant to rolling or to have better water flow but you cannot make it square or oval or whatever. It would make more sense if you applied other forms of copyright like protecting a determined graphical icon that represents, say, Microsoft Excel (and I’m using the term “make more sense” very loosely) but that’s because that graphical object is directly related to the thing. But, and correct me if I’m wrong, the patent seems to ‘protect’ overlapping of still images and showing them in two frames. How can this be unique is beyond my comprehension considering the way the software operates seems to be more unique and they did not grant a patent on it.

Not that intellectual property is comprehensible these days… But sometimes it manages to go full abstract.

ArneBab (profile) says:

Interlaced video reinvented…

TV sets had the problem that they couldn’t show a sufficient framerate, so they showed frame 1,3,5 in one set of lines and frame 2,4,6 in the other set of lines.

Doesn’t that count as prior art?

Also it’s been shown before that displaying information side-by-side allows humans to take it in more easily: http://news.mit.edu/2011/miller-memory-0623

(I already talked about the lessons learned from that for code — and for roleplaying games — way back in 2012: http://draketo.de/light/english/free-software/write-programs-you-can-hack-while-you-feel-dumb#comment-1141 )

So this is pretty obvious.

Geno0wl (profile) says:

Damn Shame

It is a damn shame Software was not recognized for what it is…a simple reorganization of math and therefore not patent-able.
Software should go under the umbrella of trademark or copyright. That still would potentially cause all sorts of problems(YOUR GUI LOOKS TOO MUCH LIKE MY GUI!) but at least it would potentially stop some of the ridiculous licensing problems we have now.

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