UI innovation: What’s needed to patent in Europe?
"Alexa, can you credibly assist me in performing a technical task by means of a continued and/or guided human machine interaction process?"

At the dawn of the smartphone era, sharing a photo involved unlocking the phone, accessing the camera, taking a photo, returning to the home screen, accessing images, and sharing via email, social media, or messaging. The user interfaces of phones have evolved since then to the extent that this can all now be done straight from the lock screen with minimal user input. User interface (UI) innovation has without doubt made our lives easier when it comes to carrying out day to day tasks. Nowadays, even a voice assistant can tend to most of our smartphone needs. Investment in UI is undoubtedly worthwhile for the user experience alone, but can businesses protect their UI innovation with patents?

In Europe, graphical and voice UIs run the risk of falling foul of the exclusions to patentability which pertain to presentations of information, computer programs, mental acts and even business methods under Article 52(2) EPC.  Thus, protecting UI innovation at the EPO can be challenging. An EPO examiner has to be convinced that the invention goes beyond these exclusions as such and solves a technical problem in a non-obvious way.

Acutely aware of this exclusion, a well-known argument advanced by would-be patentees of new UIs is that they lower the cognitive burden for a user to the extent the user responds more quickly, and thus the computer therefore requires fewer resources which solves the requisite technical problem to establish patentability at the EPO. This argument was however definitively ruled out by the EPO Boards of Appeal in T 1670/07.

In T 1670/07, the Board elaborated on an earlier decision (T 1741/08) that dealt with the well-known argument where a technical problem might be solved from the user’s reaction to information. The Board described and dismissed the argument as the “broken technical chain fallacy”.  The fallacy exists because the possible final technical effect brought about by the action of a user cannot be used to establish an overall technical effect because it is conditional on the mental activities of the user. The broken technical chain fallacy in theory could be used to reject many UI based inventions.

T 1868/15, however, offers some insight as to how a UI invention can avoid falling foul of the patentability exclusions, and address the “broken technical chain fallacy”. The application in this case concerned Apple’s Time Machine software where a graphical UI permitted a user to restore an earlier version of a selected element (i.e. a file) in a snapshot (i.e. an earlier version of a window) by showing a corresponding selection in all concurrently displayed snapshots (i.e. different earlier versions of the window). The Board stated that the problem solved by the graphical UI is how to “facilitate the efficient searching and restoration of a past version of a file”. Such a problem unavoidably requires mental evaluation on part of the user, and thus gives rise to the question whether the problem is indeed a technical one.

What turned in favour of the applicant was that the claimed UI was considered to credibly assist the user in performing a technical task by means of a continued and/or guided human-machine interaction process.

The provision of a technical tool for the searching of digital objects was deemed enough to “credibly assist” the user perform a technical task and thus solve a technical problem. In this case, it was thus possible to avoid getting into a discussion about whether the broken technical chain fallacy was applicable.

Seemingly, if the UI innovation places the user in a favourable position to carry out a technical task, this could be viewed favourably by the EPO. For example, if a smartphone graphical UI or voice UI can assist a user in selecting an earlier configuration of smart thermostats or smart lights throughout their home so as to use different energy profiles, this could be seen as addressing a technical problem (the problem of selecting energy profiles).  In these circumstances, it may well be possible to obtain a European patent.

Thus, it is important that would-be patentees set out what a UI can achieve by way of a technical application of their invention or the related technical task that can be performed. As always in Europe, careful consideration should be given to ensure that the task is indeed technical from the EPO’s perspective.  Whereas it seems that searching for a computer file/image using a graphical UI could be considered to be a technical task (T 1868/15 and T 0643/00), providing feedback via aesthetically pleasing transition effects when unlocking a phone is not (T 2630/17).  Patent applicants should therefore ensure that appropriate explanation of relevant technical tasks achieved by their UI invention is provided in their patent specifications, and should avoid discussing non-technical aspects in detail.


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