T 2580/17 12-10-2022

1. The appeal is admissible.

2. Main request - Inventive step

2.1 An invention is to be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art (Article 56 EPC).

2.2 Document D3's disclosure

2.2.1 Document D3 discloses a computer-readable memory medium storing a software called SPADE (see paragraph [0102]: "SPADE 112 may be implemented using Matlab (e.g., Matlab version 7), as in the embodiment described hereinbelow, or in other platforms, such at VTK, C++, Java or other platforms").

In an embodiment (see figure 27A), a graphical user interface (GUI) generated by SPADE is presented to the user. A view of a map of an area determined by an electromagnetic imaging (EMI) sensor is displayed in a 3D space in a first window (see the top view in figure 27A and the reference to "the 3D view of the EMI data within SPADE" in paragraph [0153]). The rendering of that graphical object implies the definition of a centre of projection and viewing parameters which, together, can be considered representative of a virtual camera situated in the 3D space. The GUI shown in figure 27A also comprises a second window (see bottom-left view) displaying the map of the area in two dimensions.

Paragraphs [0152] and [0153], together with figures 25, 26A and 26B, describe an EMI inversion process, in which (i) a user picks 2D points ("endpoints") defining a linear feature on the map of the area, (ii) the user selects a number of profiles per segment constituting the linear feature, (iii) SPADE computes a depth for each profile of each segment of the linear feature (i.e. it maps each 2D point to a respective point in the 3D space) and (iv) as each depth is computed, it is plotted (i.e. rendered) in the 3D view to allow the user to have a view of the 3D configuration of the target, thus generating an update of the view of the map of the area.

Paragraph [0153] and figures 25, 26A and 26B disclose an embodiment in which a feature has two segments, which means that three 2D points were picked by the user. It is also shown in figures 25, 26A and 26B that the 2D points are joined to form a planar polyline at depth 0.

2.2.2 The board does not share the appellant's doubts about whether the graphical object displayed in the first and second views of the GUI represents a sub-surface geological structure, as required by the wording of claim 1 (see point XV.(a) above, first sentence). An EMI sensor measures the electrical conductivity of sub-surface materials to deduce their properties. The map of the area shown to the user in the two views must necessarily provide information about what is beneath the surface (i.e. sub-surface geological structures), otherwise the map would be pointless for the purpose of selecting underground linear features for which depths are to be calculated in the EMI inversion process.

2.3 Distinguishing features

2.3.1 The subject-matter of claim 1 of the main request differs from document D3's disclosure in that it comprises the following sets of features.

Set 1|The 2D points are selected in the second window. |

Set 2|The polyline is a closed polyline. A polygon is generated in the 3D space on the basis of the polyline. The polygon is rendered. |

Set 3|The state of the polygon in the 3D space dynamically follows the instantaneous state of the planar polyline as the user creates or modifies the latter in the second window, such that the drawing input supplied in the second window is used to dynamically update the state of the drawing object, so that the change becomes immediately visible in the first window.|

2.3.2 In the context of the claim, the term "dynamically" means that any user interaction before the updating of the first view on the basis of the selected 2D points is excluded (see appellant's letter dated 9 September 2022, page 8, penultimate paragraph, last two sentences).

2.4 Technical effects

2.4.1 It is established case law that, if the features or sets of features of a claim are a mere aggregation of these features or sets of features which are not functionally interdependent, i.e. do not mutually influence each other to achieve a technical success over and above the sum of their respective individual effects, it is to be established whether each feature or each set of features is separately obvious in the light of the state of the art (see Case Law of the Boards of Appeal of the European Patent Office, 10th edition, 2022 ("Case Law"), I.D.9.3.2).

2.4.2 There is no evident correlation between the second set of distinguishing features identified under point 2.3 above and the ability of the user to interact with the graphical object in any way, as claimed by the appellant. The appellant did not provide any argument in support of its view that the alleged enhancement (see point XV.(b) above) was achieved by means of this second set of features. In any case, the appellant did not substantiate why the alleged overall enhancement achieved by means of the combination of the three sets of distinguishing features identified under point 2.3 above was over and above the sum of their individual effects.

2.4.3 In the board's view the sets of distinguishing features identified under point 2.3 above have the following technical effects.

Set 1|An appropriate view for selecting the 2D points is set. |

Set 2|The user can specify the outline of a planar object which is then represented by at least one polygon in the 3D space and rendered. |

Set 3|The user sees the polygon being drawn in the first view as 2D points are picked, i.e the conversion of the 2D points is fully automated and there is no delay until the user can view the selection of 2D points inducing a change in the 3D plot.|

2.4.4 The board cannot identify any effect achieved by the combination of these three sets of distinguishing features that is over and above the sum of each of their individual effects. Thus, it is to be established whether each set of features is separately obvious in the light of the state of the art.

2.5 Partial objective technical problems

2.5.1 It is established case law that the correct procedure for formulating the objective technical problem is to choose a problem based on the technical effect of exactly those features distinguishing the claim from the prior art that is as specific as possible without containing elements or pointers to the solution (see Case Law, I.D.4.2.1).

2.5.2 The partial objective technical problem with respect to the first set of distinguishing features identified under point 2.3 above may be formulated as that of choosing an appropriate view for selecting the 2D points.

2.5.3 The partial objective technical problem with respect to the second set of distinguishing features identified under point 2.3 above can be formulated as that of assisting the user in the creation of a 3D planar object.

In the board's view, the examining division was correct in identifying that the person skilled in the art to be considered for the present application could be an expert in computer graphics who obtains a requirement specification from the geologist (see point 1.2.5 of the examining division's communication dated 7 June 2017). In a realistic situation, the geologist would have asked the computer graphics expert to realise their wish to be able to specify and simulate specific objects. Thus, it is not relevant whether or not document D3 discloses the identification of non-linear features (see appellant's argument under point XV.(c) above). Neither the expression of the user's wish to specify and simulate specific objects, nor the realisation that specific objects are planar, requires any technical skills. These aspects belong to the motivation phase that precedes the invention. Thus, an objective technical problem that includes these aspects as a requirement to be met by the person skilled in the art does not include pointers to the solution.

2.5.4 The partial objective technical problem with respect to the third set of features identified under point 2.3 above can be formulated broadly as that of improving the system disclosed in document D3.

2.6 Obviousness - Set 1

The board notes that there are only two relevant views to choose from in the GUI of figure 27A to identify linear features. The board is not convinced that choosing either of these views can represent an inventive contribution to the state of the art.

In any case, common ground was established at the oral proceedings before the board that the map of the EMI data imported to the GUI in the embodiment of paragraphs [0152] and [0153] was a planar object. The person skilled in the art would have recognised that the cognitive content of a planar object is more easily discernible in a view showing this object as a 2D image than in a view showing a perspective projection of that object placed in a 3D space. Thus, they would have considered allowing the user to select the 2D points in the bottom-left view of the GUI shown in figure 27A, i.e. the second view within the meaning of claim 1.

The appellant did not challenge the formulation of the first partial objective technical problem and did not submit any arguments as to why, on the basis of that formulation, the first set of distinguishing features identified under point 2.3 above involved an inventive step.

In view of the above, the board reaches the conclusion that these distinguishing features would have been obvious to the person skilled in the art.

2.7 Obviousness - Set 2

2.7.1 Polygons are standard 3D representations of planar objects. Thus, in view of the second partial objective technical problem, assisting the user in creating a 3D polygon would have been obvious for the person skilled in the art of computer graphics. Moreover, the person skilled in the art would have derived from document D3 the general teaching of determining 3D vertices on the basis of 2D points of a polyline drawn by the user. Thus, determining the 3D vertices of a polygon on the basis of 2D points selected by the user would have been obvious. It is self-evident for the board that specifying a planar object by drawing a closed polyline cannot be considered to involve an inventive step.

For these reasons alone, the board finds that the second set of distinguishing features identified under point 2.3 above would have been obvious to the person skilled in the art.

2.7.2 The appellant's argument that it would not have been obvious to extrapolate the EMI inversion process described in paragraph [0153] to extract "non-linear" features (see point XV.(d) above) is not convincing, for two reasons. Firstly, claim 1 does not specify how a 2D vertex is mapped to a 3D point in the 3D space. The mapping step covers assigning an arbitrary depth to the coordinates of the specified 2D vertices. Hence, in the board's view, the general teaching of determining 3D vertices on the basis of 2D points selected by the user would already have anticipated this step. Secondly, if EMI inversion is capable of extracting the linear profile of metal pipes, the board fails to see why it would not be suitable for extracting the linear contours of simple planar objects.

2.7.3 The board disagrees with the appellant's view that paragraph [0099] of document D3 teaches away from any user interaction in the process of identifying "non-linear" features (see point XV.(e) above). The last sentence of this paragraph indicates that a user may also participate actively in the production of a processed image. The board understands this sentence as meaning that a user may actively participate in the identification of any of the features mentioned in paragraph [0098] including "any item that give[s] rise to a geophysical signature that is of interest to the survey, client or interpreter". One way of participating in such a process is disclosed in paragraphs [0152] and [0153] and requires the user to draw the linear features of the target.

2.7.4 The board attributes no weight to the appellant's argument that better solutions than EMI inversion existed for the purpose of extracting underground "non-linear" features (see point XV.(d) above), since this alleged fact has not been supported by any evidence.

2.7.5 In view of the above, the board reaches the conclusion that the second set of distinguishing features identified under point 2.3 above would have been obvious to the person skilled in the art.

2.8 Obviousness - Set 3

2.8.1 The appellant could not convince the board that the wish to see drawing inputs in the 2D view corresponding to the creation or modification of the polyline being dynamically and immediately reflected in a corresponding change to a polygon in a 3D view was not obvious. It is established case law that the mere automation of functions previously performed by human operators cannot be considered inventive since this is in line with the general trend in technology (see Case Law, I.D.9.21.6). Thus, the mere idea of automating the selection of the number of profiles per segment mentioned in paragraph [0153] of document D3 cannot be considered inventive. The board finds that the mere idea of obtaining results of certain computations without delay is also in line with the general trend in technology and, as such, cannot be considered to represent an inventive contribution to the state of the art.

2.8.2 The implementation of the obvious ideas of automation and immediacy would not have posed any technical difficulties to the person skilled in the art. For example, the person skilled in the art would have arrived at a process in which the changes made in the second view are "dynamically" reflected in the first view merely by setting a default number of profiles per segment. Moreover, the appellant itself submitted that sufficiently powerful computers existed in 2008 to return the result of an EMI inversion immediately (see point XV.(f) above). Therefore, by combining the two obvious concepts of automation and immediacy the person skilled in the art would have arrived at a method in which each creation of a new segment immediately induced a change in the 3D plot.

2.8.3 The appellant's argument that the user of the GUI described in document D3 does not need to manipulate (update) the segments of the polyline once they have been specified (see point XV.(f) above) is not persuasive, because this is not required by claim 1. The claim does not specify what it means for a (closed) planar polyline to be created or modified. An object representing a (closed) planar polyline can be considered "created" as soon as three 2D points have been selected and "modified" for each subsequent selection of an additional 2D point. Therefore, by combining the two obvious concepts of automation and immediacy the person skilled in the art would have arrived at a method in which the state of the polygon in the 3D space dynamically follows the instantaneous state of the planar polyline as it is created or modified by the user.

2.8.4 In view of the above, the board reaches the conclusion that the third set of distinguishing features identified under point 2.3 above would have been obvious to the person skilled in the art.

2.9 Since the board found that all the distinguishing features identified under point 2.3 above would have been obvious to the person skilled in the art, it comes to the conclusion that the examining division was correct in its finding that the subject-matter of claim 1 of the main request does not involve an inventive step within the meaning of Article 56 EPC.

3. Main request beta - Inventive step

It is common ground that the amendment made to claim 1 according to the beta version of the main request does not address the issue of lack of inventive step raised with respect to claim 1 of the main request (see minutes of the oral proceedings held on 12 October 2022). Therefore, the board comes to the conclusion that the subject-matter of claim 1 of "Main Request Beta" does not involve an inventive step within the meaning of Article 56 EPC.

4. First and second auxiliary requests and their beta versions - Clarity

4.1 Article 84 EPC provides that the claims must be clear.

It is established case law that the independent claims must specify all the essential features of the invention (see Case Law, II.A.3.2).

4.2 Claim 1 of the first and second auxiliary requests and their beta versions is directed to a computer-readable memory medium having program instructions executable by a computer system to implement steps of a specified method. The last feature reads as follows:

assigning a property value consistent with the second facies to grid points of the second submesh

4.3 The determination of the property values consistent with the second facies is an absolute precondition for the assignment of these values to grid points of the second submesh and for the simulation that is intended to be executed on the basis of these grid points and their properties (see paragraph [0114] of the description of the application in hand). Therefore, the board is of the view that this determination represents an integral part of the invention, unlike what was suggested by the appellant (see point XVI. above).

4.4 It is undisputed that the feature identified under point 4.2 above covers the determination, by the program instructions of the computer-readable memory medium, of the property values consistent with the second facies. However, the claim does not specify any feature allowing program instructions to determine property values consistent with a facies. In particular, the claim does not specify any feature guaranteeing that the properties of the facies are known to the system. Claim 1 specifies a step of "receiving user input indicating that a boundary of the polygon represents an unconformity between a first facies and a second facies". Contrary to the appellant's statement (see point XVI. above), it cannot be deduced from this wording that, as a result of the user input, the types of the first and second facies - and the properties thereof - are known to the system. Indicating that there is an unconformity between a first facies and a second facies may simply trigger the generation of the new mesh for the surface on the basis of the polygon. Claim 1 further specifies that "at least a portion of the first submesh is assigned to the first facies, wherein the second submesh is assigned to the second facies". It can also not be deduced from this wording that, as a result of the assignment of the portions of the submeshes to facies, the system knows the properties of the first facies and the second facies. The step may simply mean that graphical objects created to represent the first and second facies are associated with the relevant portions of the first and second submeshes. Therefore, the claim does not specify all the essential features of the invention.

4.5 The board agrees with the appellant that the expression "consistent with" covers not only the case in which the property value is determined by the program but also the case in which this value is input by a user (see point XVI. above). However, if both cases had been explicitly specified in the claim, there is no doubt that the claim would not have specified all the essential features for the first case. The board cannot see why a different conclusion should be reached simply because these two cases are implicitly covered by an umbrella term.

4.6 In view of the above, the board finds that claim 1 of the first and second auxiliary requests and their beta versions is not clear and, therefore, that these requests do not meet the requirements of Article 84 EPC.

5. Request for remittal of the case to the first-instance department

Since the board has decided on the allowability of all claim requests on file, remitting the case to the department of first instance for further prosecution under Article 111(1), second sentence, EPC would serve no purpose. Therefore, this request is refused.

6. Conclusion

Since none of the requests on file is allowable, the appeal must be dismissed.