c) Functional and cognitive data 

In T 1194/97 (OJ 2000, 525) the board held that functional data were to be distinguished from coded cognitive content. A record carrier characterised by having functional data recorded on it was not a presentation of information as such. In this context the term "functional data" included a data structure defined in terms which inherently comprised the technical features of the system in which the record carrier was used.

In T 2049/12 the board held that a common misconception regarding decision T 1194/97 was that there were only two kinds of data – cognitive and functional – and that functional (i.e. non-cognitive) data was always technical. The relevant question for assessing whether a data structure had technical character was rather whether it produces a technical effect.

In T 643/00 the board noted that it was true that non-technical aspects may be found in the design and the use of an interface through which the user interacts with a system (see decision T 244/00). Indeed, presenting information through a user interface, if the only relevant effect of the presentation relates to the visually attractive nature of the graphic design or artwork, does not have technical character. However, in its decision the board had not excluded the possibility that an arrangement of menu items (or images) on a screen might be determined by technical considerations. Such considerations might be intended to enable the user to manage a technical task, such as searching and retrieving images stored in an image processing apparatus, in a more efficient or faster manner, even if an evaluation by the user on a mental level was involved. Although such evaluation per se did not fall within the meaning of "invention" pursuant to Art. 52 EPC 1973, the mere fact that mental activities were involved did not necessarily qualify subject-matter as non-technical. The board referred to T 1177/97 where it was stated that the use of a piece of information in a technical system, or its usability for this purpose, may confer a technical character on the information itself in that it reflects the properties of the technical system, for instance by being specifically formatted or processed.

T 677/09 was concerned with information about differences between different vehicles which was provided to the user of a vehicle information system on actuating a component. The board considered that such an effect would depend on the content of the information and the user's reaction to it. This effect was thus not the direct effect of the feature and could not be used to formulate the technical problem. The board noted that the appellant invoked non-technical aspects as a reason for not modifying the prior art and that in T 1670/07, this kind of argument was referred to as a "non-technical prejudice fallacy" (point 16 of the Reasons). The fact that this was not possible followed from the fact that the non-technical features relating to the information content could not contribute towards an inventive step at all. The question was not whether the skilled person would consider providing these features because that had already been decided in formulating the technical problem, but whether it would be obvious to implement the features in the claimed manner. The appellant pointed out that in data processing a signal generally has cognitive information content, but according to the jurisprudence nevertheless has technical character. However, the board considered that this technical character was due to the so called "functional data" implied by the signal, which inherently comprises technical features that interact with those of the system in which the signal is operating, such as synchronising data (see for example T 1194/97, point 3.3 of the Reasons). In the case at issue, there were no such inherent technical features of the different information so that it did not have a functional part, but remained purely cognitive. This was different in the case of systems with features that might have a direct technical effect, such as giving information about the status of the engine, or about an imminent collision, or how to park the vehicle.