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 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.

In T 1806/20 the board was not convinced by the argument that information about a parcel's water-sensitivity was functional technical data in the sense of decisions T 1194/97 and T 424/03, because its loss would impair the technical operation of the system (T 1194/97). It was self-evident that if a piece, either technical or non-technical, of any invention was taken out, it would not work as designed. In the board's view, what T 1194/97 was saying was rather that the loss of functional data would make the system inoperable at the technical level. In contrast, if cognitive data was lost, the system would still work but possibly produce results that would be unintended for non-technical reasons.

In T 2594/17 and T 2607/17 the invention at issue was a virtual weldment system for training purposes. In the board's opinion, the claimed system carried out image processing. Images of weldments were rendered, manipulated and displayed. That the images represented weldments or that the manipulations represented testing and/or inspection of those weldments was, in the general manner claimed and described in the application, the result of the cognitive content (information) of the displayed images. It is the user who perceives the images as weldments and the manipulation of those images as testing and/or inspection. Such cognitive information ("what" is displayed) is not related to any technical problem or technical constraints. This applies also to the type of tests (e.g. destructive or non-destructive) the system is able to simulate. The board relied on established case law that the cognitive content of a displayed image ("what" is displayed) is in principle not a technical feature and considered that the display of 3D virtual weldments and the fact that the image processing carried out represents weldment testing and/or inspection could not be seen as technical features of the claimed system which provided any technical effect.