9.2.8 Credible technical effects

In T 258/97 the board held that an assessment of inventive step could only be based on those elements and aspects of the invention in respect of which a technical effect could be established (see also T 1461/12). Whether an invention caused a technical effect was essentially a question of fact. While the EPO has a duty to determine such facts in examination proceedings, the onus is upon the applicant to cooperate in said determination, in particular in the event of doubt (see also T 953/04, T 1958/13).

In T 27/97 the board held that an abstract algorithm was relevant to inventive step only if a technical effect could be established which was causally linked to the algorithm, such that the technical effect provided a contribution to the solution of a technical problem and thereby conferred a "technical character" on the algorithm.

In T 953/04 the board followed decision T 258/97 in this respect and noted that if the doubts about the technical character of the invention could not be resolved, the features in question had to be ignored in assessing inventive step (see also T 27/97).

In T 823/07 the board, following decision T 1143/06, stated that the manner how cognitive content is presented to the user may only contribute to the technical solution of a technical problem if the manner of presentation (exceptionally) shows a credible technical effect (see also T 1575/07, T 1741/08, T 1562/11).

In T 1958/13 the invention was concerned with copying and pasting on a touchscreen display by means of a "single-drag gesture". Although the board deemed those effects, in principle, to be technical effects, since in the end they aim at providing tools which serve or assist user activities (see e.g. T 643/00), the question whether they were actually achieved depended exclusively on subjective user skills or preferences. Therefore, the board was not satisfied that they could be regarded as objectively credible technical effects for the purpose of formulating the objective problem to be solved (see also T 1567/05, T 1841/06 and T 407/11; see also T 77/14 on gesture-based functions).