T 0339/13 (Interacting with virtual pets/IMMERSION) 17-11-2015

Alleged fundamental deficiencies, Article 11 RPBA

1. The following considerations are based on the preli­mi­nary opinion of the board, as expressed in the annex to the summons to oral proceedings, and on which the appellant chose not to comment in writing or orally du­ring oral proceedings.

2. In the grounds of appeal (see pages 1 and 2), the appellant argued that the decision was not clear because it referred to the wrong documents and because the deci­sion was ambiguous as to whether the examining division con­sidered D1 to disclose a haptic effect. It may have been the appellant's intention to argue that these defi­cien­cies rendered the decision insufficiently reasoned (Rule 111(2) EPC). The appellant also argued that the exa­mining division had interpreted too narrow­ly the ex­pression "tech­ni­cal prob­lem", contrary to what was pre­scribed in the Guide­lines G-VII, 5.2 (see grounds of appeal, page 3).

2.1 As regards the documents, the board notes firstly that the documents referred to by the examining division as D1 and D2 in its decision are not the same as the documents referred to as D1 and D2 in the annex to its summons to oral proceedings. Secondly, on reading the passages in D1 referred to in the decision, the reader would immediately realize that they cannot belong to the '373 patent.

2.1.1 In par­ti­cular, the passage bridging columns 7 and 8 was cited earlier during examination with refe­rence to D1=US 6 273 815 B1 (see the summons to oral procee­dings). In the board's judgment it was thus ob­vi­ous which document the examining division intended to cite as D1 in the deci­sion. Indeed, the appellant was also able to resolve this discrepancy.

2.1.2 As regards D2, it is not evident whether the document cited in the decision or that cited in the summons to oral procee­dings was being referred to. This is due to the fact that the decision referred to D2 only in passing, without citing any particular passage, and in such a way that either of the two documents might have been meant. If one assumes that, as with D1, the do­cu­ment numbering in the summons to oral proceedings is autho­ri­tative, then it follows that a reference to D2=US 5 734 373 A was in­tended. However, it has not been disputed that the relevant disclosure of "D2" was known in the art, so that it does not matter for the examining divi­sion's argument whether any prior art do­cument is re­ferred to or, if so, which one. More­over, the dis­closure of D2 was only cited to illus­trate, by way of contrast, a deficiency of the appli­cation (see decision, reasons 9.2.2, page 5, 2nd pa­ra­graph), and therefore is not, in the board's judgment, a signifi­cant part of the reasons for the de­ci­­sion.

2.2 As regards the alleged ambiguity in the examining divi­sion's argument, the board disagrees with the appellant's point of view. Haptic feedback was men­tioned as a difference between the claimed invention and D1 only "according to the applicant's argument" and in contrast to what had been argued by the examining divi­sion (see reasons 9.1, 3rd paragraph, reasons 9.2, and rea­sons 9.2.2, 1st paragraph). The ar­gument that fea­ture (b) might not be a distin­gui­shing feature is made in the conditional form (reason 9.2.2, 1st pa­ragraph, last sen­tence), which the board takes to mean that the exa­mining division left this issue open, even though it appears that the examining division in fact tended to the opin­ion that D1 did disclose feature (b). The exa­mi­ning division, giving the appellant the "bene­fit of the doubt" in this res­pect (reasons 9.2.2, 2nd para­graph, 1st sentence), then argued that diffe­rence (b) did not solve a technical problem and could there­fore not es­tablish an inventive step (see reasons 9.2.2, pa­ra­graph bridging pages 4-5, and reasons 9.3).

2.3 The board concludes that the reasons given for the de­cision are clearly understandable and that the decision therefore is not insufficiently reasoned.

2.4 As regards the allegation that the examining division did not interpret the term "technical problem" as pre­scribed in the Guidelines the board first notes that this, even if true, would not constitute a pro­cedural violation. Secondly, the board disagrees with the appellant's position in substance. In the board's understanding, the cited section of the Guidelines (G-VII, 5.2, the applicable version being that of June 2012) specifies that the "tech­nical prob­lem" should be "interpreted broadly" so as not to imply that the claimed solution must be a "technical improvement" over the art. That section fur­ther requires that it be made "credible that substan­tially claimed em­bo­di­ments ex­hi­bit the technical effects upon which the invention is based". As the board under­stands the decision under appeal, the ar­gument that the "success of the solution" could not be quantified or demonstrated implied that the achieved technical effect was not made credible. To dis­miss a technical problem as inappropriate on this basis is not, in the board's view, in conflict with the cited passage of the Guidelines.

3. In summary, the board concludes that the proce­dure be­fore the exami­ning division does not exhibit any sub­stantial procedural viola­tion - nor any other funda­men­tal deficiency - which could have required a direct re­mittal of the case to the first instance under Article 11 RPBA.

The invention

4. The application relates to what is referred to as a "vir­­tual pet". It is disclosed that a virtual pet could be "any simulated creature or character, which may or may not have a 'real-life' counterpart" (page 1, lines 7-8 and 21-23). As a specific example of a pet which does, a cat is disclosed (see page 9, line 16).

4.1 In general, the user ("owner") of a virtual pet is meant to interact with it in a way which resembles the inter­action with a real pet. For example, if the vir­tual pet signals that it is "hungry", the owner is supposed to "feed" it and make it "happy" (see e.g. page 5, lines 5-8, and page 9, lines 14-17). The vir­tual pet provides feedback, for instance in the form of visual or audio effects (page 3, lines 11-13).

4.2 The application states that the feedback from the vir­tual pet relates to its "bio­logical status" and explains that this is to be construed broadly as its "state of being", such as its "health or emotional state" (see page 2, lines 22-25).

4.3 The virtual pet is "simulated" by a suitable software application, which may be part of a stand-alone toy (such as those known as "Tamagotchi"; see page 1, lines 8-10) or other hand-held device (page 7, lines 29-31), or be executed remotely on a network resource (see page 2, line 29, to page 3, line 1; and the reference to "Neopets.com" on page 8, lines 18-20). In the latter case, the feedback from the virtual pet is communicated to some "local device for interaction with the user" (see page 3, lines 1-3, and page 7, lines 18-20).

4.4 The application is specifically concerned with a vir­tual pet which is capable of giving "haptic feedback" - ex­plained as "any type of force feedback, such as tac­tile or kinesthetic feedback" (see page 4, lines 26-30) - to produce, for instance, tactile sensations, such as vi­bra­­tions or pulses (see page 8, line 27).

The prior art

5. As mentioned above, the application itself acknowledges that virtual pets in general were known in the art (see, in particular, the references to "Tamagotchi" and "Neo­pets.com", loc. cit.). D1 also states that virtual pets were known in the art before the present priority date (see esp. column 1, lines 14-23). Moreover, D1 dis­closes a specific virtual pet in the form of a por­table device which provides visual feedback on a dis­play screen (see figure 9, column 3, lines 27-37 and 62-64, and column 7, lines 25-34). D1 also discloses a toy which can actually per­form (rather than only dis­play) the relevant activi­ties and beha­vi­ours by means of elec­tronically con­trolled movements. In this embodi­ment, the portable de­vice becomes a remote control (see figure 11, column, 7, line 66, to column 8, line 10).

6. The application also states that "haptic-enabled" user-interfaces such as computer mouses were known in the art (see page 8, lines 4-24). Examples of such devices are known from D2 (see e.g. column 3, lines 50-56), as are exam­ples of spe­ci­fic kinds of haptic feedback (see co­lumn 4, lines 27-34). D2 also gives examples of kinds of haptic sensations (such as "vibra­tion", "wobble", "jolt" or "button" for­ces; column 4, lines 27-31; column 35, line 33, to column 36, line 6) and their use in the context of games (see column 1, lines 27-29), for instance to evoke the feeling of an obstruction, a textured surface, an ex­plosion, or a vis­cous fluid (column 19, lines 44-45 and 53-63; co­lumn 20, lines 42-45; column 37, lines 18-28). The board notes that D2 is acknowledged in the description (page 8, line 13).

Claim interpretation

7. The claimed invention is directed at the production of a haptic effect as feedback on the "biological sta­tus" of a "virtual pet" and, more specifically, on its "health state". It is evident that a vir­tu­al pet has neither a "bio­lo­gical status" nor a "health state" in the literal sense of these terms and that both terms can only refer to pro­per­ties of a model, in particular a software pro­gram meant to evoke the illusion of a real pet. The board therefore takes the terms "biologi­cal status" and "health state" to be metapho­rical ones referring to the perception of a human observer in view of their expec­tations about the beha­vi­or of a real pet, especially a living animal. In technical terms, how­ever, both are essentially unde­fined para­meters of the in­ter­nal state of the vir­tual pet software or de­vice.

8. The claims refer to the "biological status having a haptic effect associated therewith" (emphasis by the board). The board takes this to refer to an association chosen by the toy designer which per se does not imply any realism.

9. It is stated in the description that the term "haptic effect" should be "construed broadly as encompassing any type of force feedback, such as tactile or kines­thetic feedback, that is deemed appropriate for convey­ing a particular bio­lo­gical status of the virtual pet" (page 4, lines 26-30). Notwithstanding this statement, however, the term "hap­tic effect" must, in the board's understanding, be one which is meant to be felt rather than seen and which can be identified by touch rather than by sight. Accor­ding­ly, the "user-interface object" specified in the claims is meant to be held or touched by the user so as to feel the ­­­­haptic effect produced by the object. On the other hand, any part of the toy in question which the user is meant to touch or hold qua­lifies as the claimed user-interface object, in­cluding, for instance, the casing of a hand-held de­vice.

10. In summary, the board construes claim 1 of the main re­quest as specifying a method of out­putting, through some sort of "user-interface" and based on some signal meant to represent the pet's inter­nal state, a "haptic sensa­tion" which is selected to represent that state.

11. Beyond that, claims 1 and 8 of the auxiliary request specify a physical interaction between the user and a device, according to which the device responds with a periodic vibration to the user moving a cursor back and forth over the display of the virtual pet.

Inventive step

12. The decision under appeal assessed in­ventive step starting from D1, and the board agrees that this is a suitable choice. As explained above (point 10), the board considers that the movements of eyes, mouth or limbs of the virtual electronic pet accor­ding to D1 (see column 7, line 66, to column 8, line 10; figure 11, item 510) do not qualify as haptic feedback. Instead of a vir­tual electronic pet which the user is not supposed to handle, the board considers that the starting point for the assessment of inventive step must rather be a device which the user is supposed to hold. In D1, this is, in particular, the hand-held de­vice display­ing the virtual pet according to figure 9.

Main request

13. D1 discloses a method and apparatus for providing feed­back to a user interacting with a virtual pet, the feed­back relating to the virtual pet being "hungry, bored, dirty, sick, bad or tired" (see column 1, lines 18-21, and co­lumn 3, lines 29-31). At least "hungry", "sick" and "tired" indicate "bio­logical status" of the virtual pet, when broadly con­strued as explained above, and at least one of them ("sick") even specifically relates to the "health state" of the virtual pet.

14. Claim 1 of the main request thus differs from D1 in that it relates to a virtual pet

(a) being equipped to provide haptic feedback, and

(b) providing a "pulsing sensation, wherein the rate or magnitude of the pulsing sensation indicates the health state of the virtual pet".

15. As regards feature (a), the board takes the view that it is well-known in the art (see D2) to use haptic feed­back in com­puter games so as to increase the player's perception of interacting with the "real thing".

15.1 Even though the par­ticular games and game situations dis­cussed in D2 do not include virtual pets, the board is of the opinion that the skilled person would con­si­der, without exercising an inventive step, incor­po­ra­ting a haptic feedback assembly into other game devices simp­ly in order to increase the variety of feedback modali­ties available to the interface de­sig­ner (see D2, column 1, lines 58-59).

15.2 The appellant argued during oral proceedings that the haptic feedback according to D2 is limited to periphe­ral user interface "objects" which users are to grasp, such as joysticks (see column 1, lines 41-44; column 1, lines 19-21; column 3, lines 50-52) and that the hand-held de­vice of D2 does not provide or easily lend itself to the incorporation of such components. The board, in contrast to the appellant, cannot see any technical difficulty that would prevent the skilled person from extending the device of D2 by adding a periphe­ral interface object such as, say, a stylus. More than that, however, the board con­si­ders that the entire ca­sing of the hand-held device can easily, and obviously so, serve as the claimed user-in­terface object to which the haptic effect is "out­put".

15.3 Therefore, the board concludes that the provision of hap­tic feedback in a hand-held virtual pet such as that of D1 is, in itself, insufficient to establish an in­ven­tive step.

16. As regards feature (b), the appellant argued in its grounds of appeal (page 4, point 5) that it "enhances the realism of the user's re­la­tionship" or interaction "with the virtual pet" and, during oral proceedings, argued that it increased the players' "engagement" with their virtual pets.

16.1 The board considers that these problems are not technical, nor are they necessarily always solved, so that they are unsuitable for characterizing a technical effect achieved by fea­ture (b).

16.2 Whether players can be said to "engage" more in a given game will depend, inter alia, on how interesting enter­taining or otherwise attractive the game appears. This however depends on an entirely subjective assess­ment by players. Therefore, whether players find a game more in­teresting, entertaining or attractive does not, in the board's judgment, constitute a technical effect of a new game or game device.

16.3 A haptic sen­sa­tion generated in a game context might, in the board's view, be claimed to be "realistic" when it is derived from and is physically comparable to hap­tic sensations that arise in the real situ­ation. In the pre­sent case however, the claims do not set out the spe­­ci­fic phe­no­menon that the claimed "pul­sing sen­sa­tion" is to mi­mic, so that it is impossible to assess whether an increased perception of "realism" is actu­ally achieved by the claimed in­vention in this res­pect. Even on the under­standing that the pulsing sensa­tion is meant to con­vey infor­mation about the pet's "health state" by evoking the perception of a heart beat, the board re­mains uncon­vinced, inter alia because the claimed inven­tion does not explain how "rate or magni­tude of the pul­sing sen­sation" is meant to corre­late with the percep­tion of health and thus does not allow an assessment of whether the claimed inven­tion could be said to evoke that perception in users in a reliable and repro­ducible manner. Therefore, the subject-matter of the claims of the main re­quest does not realize the alleged increased "realism".

17. In the board's judgment, therefore, the claims of the main request do not go beyond specifying the use of a known form of haptic feedback in a virtual electronic pet such as that known from D1, which, as argued above, the board considers to be obvious in the light of D2, and therefore do not involve an inventive step in the sense of Article 56 EPC 1973.

Auxiliary request

18. The independent claims of the auxiliary request speci­fy, in addition to those of the main request, that the user interacting with the virtual electronic pet moves a cur­sor back and forth over the display of the virtual pet and, in response to this movement and varying with it, receives as haptic sensation a periodic vibration. The claim further specifies that the virtual pet in question is meant to "be" a cat and the haptic feedback to evoke a "purring sensation".

18.1 This interaction is modelled on a real inter­action of an owner with an actual pet, more specifically on the response of a cat to its owner petting it. From this per­spective, the board accepts the appellant's argument that the invention increases the similarity between the physical interaction between a user and its toy, the virtual pet, with that between an owner and his/her real pet.

18.2 The board notes that the owner of a toy must be willing to accept the toy's behaviour as real. This applies to a virtual pet just as well as to other toys such as, for instance, a doll equipped with means to "speak" or to move its eyelids. The board agrees with the exa­mi­ning divi­sion that the "increased realism" cannot be quantified, let alone measured, and considers that this makes it diffi­cult in general to assess whether the goal of in­creased realism is actually achieved. How­ever, the board accepts that it would, in individual cases, be possible to demon­strate whether this goal is achieved. In this regard, the board considers that pro­ducing a toy that mimics reality is not a "simulation" in the same sense of this term used in science and en­gi­nee­ring. In the board's view, less is required for a toy to be perceived as real, or to resemble a real ob­ject, than from a simulation in science, manufactu­ring or system control to achieve its technical pur­pose. Ha­ving said that, the board is satisfied that the user of the claimed method and apparatus has a suffi­ciently re­liable and re­pro­ducible perception of physi­cally inter­acting with a real pet - if only in very ge­neral terms, given the breadth of the claim language and the lack of detail in the description.

18.3 The board accepts as a technical problem in the context of virtual pets that of achieving the reliable and re­pro­­ducible perception of a physical interaction with the real pet. More­over, the board finds that the in­ven­tion solves this prob­lem with technical means, more spe­­ci­fi­cally in terms of techni­cal features of the de­vice in­terface, namely a re­cipro­cati­ng cursor movement and hap­tic feedback.

19. Returning to D1, the board notes that D1, apart from not disclosing any haptic feedback, also does not dis­close any direct interaction between the user and the dis­played pet in a way physically resembling an in­ter­action with a real pet. D2, while disclosing the use of haptic feedback in the context of computer games in ge­neral, does not dis­close its use in the context of vir­tual pets and therefore, in the board's view, does not suggest the specifically claimed interaction between the user and the virtual pet.

20. Therefore, the board concludes that the subject-matter of claims 1 and 8 of the auxiliary request involves the required inventive step over D1 and D2, either separa­tely or in combination.

Reimbursement of the appeal fee under Rule 103(1)a) EPC

21. A request for reimbursement of the appeal fee was made in the notice of appeal, but no specific reasons for the request were gi­ven in either the notice or the grounds of appeal. Also­ no reason was given why reim­bursement of the appeal should be considered equitable.

22. As explained above with regard to Article 11 RPBA, the board is of the opinion that no substantial procedural violation occurred in the first instance proceedings. Therefore, the request for reimbursement of the appeal fee must be rejected.