T 1469/20 (Store tool/BREMER) 30-07-2024

Reasons for the Decision

1. Main request, clarity (Article 84 EPC)

1.1 The examining division objected to the clarity of the terms "inexpensive", "swift", "accessible", "wide variety", "multiple picture display", and "pleasant association[s]" in claim 1 (Article 84 EPC).

1.2 The Board shares this view for the terms "inexpensive", "swift", "wide variety" and "pleasant association". While these terms each have a dictionary definition as pointed out by the appellant, they do not define the claimed subject-matter in a clearly delimiting and objective way. All of the terms are relative, and the Board does not consider that the context of claim 1 gives them a sufficiently clear and specific meaning. Furthermore, what counts as a "pleasant association" is subjective and, therefore, this term does not objectively define the scope of protection.

1.3 Article 84 EPC requires that the claims be clear on their own. Nevertheless, turning to the description, the Board does not see that it provides a technical context which gives the unclear terms a specific and clear technical meaning.

1.4 The fact that the claim can be interpreted, essentially by disregarding the relative and subjective terms which are not clearly limiting, does not mean that the claim can be allowed as it stands. Clarity is a requirement separate from novelty and inventive step, and allowing unclear terms to remain in the claim places an undue burden on the reader seeking to determine the scope of protection.

1.5 The fact that "inexpensive" and "pleasant association" are non-technical concepts which as such do not count for inventive step, does not matter for the question of clarity.

1.6 Apart from the unclear terms discussed above, the Board considers that claim 1 lacks clarity also for the following reasons.

The Board takes issue with the whole claim, which is not in the standard form of a patent claim. The claim is rather in the form of a long, continuous text, with much repetition, and it is largely focusing on the effects of the invention rather than its features. This makes it difficult, if at all possible, to identify the technical features of the invention, let alone determine how those features fit together.

The central concept in claim 1 is a "store tool" made of wireless tablets. The tablets are operated by staff via one (or both?) of two user interfaces and Internet pages to display content to customers in a store. The tablets have screens, and these are, indeed, the only display devices mentioned in claim 1. It also appears that the display of content takes place via one (or both?) of the user interfaces, which are on the tablets. In other words, it seems that the tablets are used, both for operating the Internet pages by staff, and for displaying content to the customer. However, this is not clearly specified in claim 1. Indeed, claim 1 also suggests that staff may use another device such as a computer or a mobile phone to access the central user interface and update the Internet pages, which indicates that there may be other devices that are part of the overall system or tool. In the Board's view, the link between how content is created by staff and how it is displayed to customers is not clear in claim 1. The claim does not specify the technical system for this sufficiently clearly.

2. Main request, inventive step (Article 56 EPC)

2.1 The examining division considered that claim 1 lacked an inventive step over a notoriously known computer system comprising a processing unit, a computer-readable medium, a display, and I/O units, and with the ability to run applications with interfaces, including web pages, and connected to a database. It was, moreover, notoriously known to create web pages with updatable content. The location of the screens had no technical relevance, but was considered to be a mere business choice related to their placements next to products in a store. The only technical contribution of the invention lay in the implementation of non-technical matter on the notoriously known computer system and this would have been obvious to the skilled person.

2.2 The examining division also stated that both D1 and D2 disclosed the use of contextual advertising in stores to optimize sales and reduce food spill, among other claimed advantages. D1 and D2 disclosed interfaces on screens next to products or on the user devices to recommend other products or offer contextual promotions. The examining division did not see any technical differences over D1 or D2 which provided an inventive step. The inclusion of staff in the method led to a broken technical chain (T 1741/08 - GUI layout/SAP), and, therefore, there was no technical effect in having staff create the content.

2.3 In the communication, the Board considered that claim 1 was largely anticipated by the disclosure of Dl. D1 disclosed digital screens in a store. These screens could be used to display product information including images and video (see e.g pages 4 and 5). The screens were wireless-enabled (the bottom part of page 13) and could be controlled from a central computer (see the text box in the upper right corner, and the Figure on page 14). D1 did not explicitly mention web pages but the Board tended to consider that it would have been an obvious (and known) format for providing information on a screen. The remaining features in claim 1 related to unclear relative terms, non limiting use features, and technical and non-technical effects to be achieved (desiderata). Therefore, the Board did not see anything inventive over D1 (Article 56 EPC).

2.4 The appellant argued that the invention in claim 1 provided several advantages by displaying content to customers "in real time" at placements in the store (line 6 in claim 1). According to the appellant, "real time" related to the movement of the customer. In other words, the screen was switched on only when the customer approached it. As support for this feature, the appellant pointed to paragraph [0017] of the description, which stated that content from security cameras usually covering every isle in a store can be used by the tool interface controller to adjust and present screen content and sound for the customer in real time. Thus, the appellant argued that the invention provided the following "inventive steps":

- There are electricity saving because the tool operates in real time for a period of time e.g. 10 min, instead of e.g. 20 hours per day.

- When the nearest screen comes on in real time, it is better noticed than one or several screens further away from a person.

- These features had not been available in retail until now. Enormous costs in retail lead to a higher cost of food. Inventions that make POS marketing more effective, and at the same time save costs, is therefore imperative for the whole industry.

- Creating content from file or a database in real time has not been available before. This can today be done at a minimal cost with Open AI/Chat GPT.

- As an example, content made for one store can traditionally cost as much as 1.000 to 5.000 Euros when produced by a professional visual marketer.

- The invention also has a shoplifter deterring effect: When a screen operating in real me comes alive with content near a potential shoplifter, it is noticeable and might deter a thief.

2.5 The Board does not see that the invention as claimed has the effects argued by the appellant. In the Board's view, the term "real time" in this application is broad and not specifically limited to a user-tracking system which reacts to the detection of a person appearing. The term real time in claim 1 could also mean that the content is presented on the screen as soon as it is uploaded, i.e. that the content is updatable in real time. This is typical for networked systems, which allows for the transfer of data with little or no delay, i.e. in real time. Thus, without any further features specifying the user detection, the tool referred to in claim 1 does not provide any technical effects beyond a standard Internet based system.

2.6 For these reasons, the Board concludes that claim 1 lacks an inventive step (Article 56 EPC).

3. First auxiliary request

3.1 Even though claim 1 of this request removes some of the unclear features discussed in points 1.1 to 1.5 above, the additional clarity and inventive step objections in points 1.6 and 2 still apply, so that this request is, therefore, not allowable.

4. Request for the reimbursement of the appeal fee

4.1 The appellant requested the reimbursement of the appeal fee by reason of a substantial procedural violation. He argued that he did not have an opportunity to comment on the examining division's clarity objection, which was raised for the first time in the decision to refuse the application, and, therefore, his right to be heard under Article 113(1) EPC was not respected. The appellant furthermore argued that the lack of inventive step was not proven or shown by referencing prior art and the appellant's arguments were not adhered to.

4.2 The Board does not consider that there was a violation of Article 113(1) EPC.

It is true that the lack of clarity of the particular wording "inexpensive", "swift", "accessible, "wide variety", "multiple picture display", and "pleasant association", was pointed out for the first time in the refusal. However, a clarity objection was raised against the previous claim, in particular concerning the indefinite terms "easily", "firmly", "fast", "idea", "resize", "reshape", "acquirable online", and "increasing the well being". Thus, it should not have been a surprise that the examining division might have objections against an amended claim including partly synonymous and equally indefinite terms.

4.3 As for the objection of lack of inventive step, the examining division gave reasons and referred to prior art (notorious prior art and D1 and D2), and they considered the appellant's arguments. Just because those arguments were not found to be convincing does not mean that they were not considered and that there was a substantial procedural violation.

5. The submissions received after the oral proceedings

5.1 The Board's decision terminates the appeal proceedings. A decision that is announced during oral proceedings takes effect immediately. After this, the Board is no longer empowered or competent to take any further action apart from drafting the written decision (see for example T 843/91, OJ EPO 1994, 818). Therefore, the appellant's submissions must be left without consideration.