9.2. Problem-solution approach when applied to mixed-type inventions
9.2.15 Games
In T 1023/06 the invention related to a method of operating an electronic video poker machine. Following the approach of T 49/04 the board held that an improvement in readability, which related to how "cognitive content" was presented, constituted a technical contribution.
In T 717/05, T 42/10 and T 1281/10 the boards had to examine whether the amusement of the player could be a technical problem. In T 717/05 the board held that amusement was the psychological purpose of a gaming apparatus and thus was the relevant objective technical problem to the extent that the enhanced amusement was achieved by technical features of the claim. In T 42/10 and T 1281/10 the boards denied this.
In T 1543/06 the board applied T 641/00 and furthermore held that a consideration of the particular manner of implementation had to focus on any further technical advantages or effects associated with the specific features of implementation over and above the effects and advantages inherent in the excluded subject-matter. The latter were at best to be regarded as incidental to that implementation. It also held that non-technical effects inherent in non-technical game rules could not be taken into account in assessing inventive step.
In T 336/07 the board followed the same approach. It held that the mere fact that subject-matter (here rules for playing games), which is excluded per se under Art. 52(2)(c) EPC 1973, is technically implemented could not form the basis for inventive step. Inventive step can be based only on the particular manner of implementation of such subject-matter. A consideration of the particular manner of implementation has to focus on any further technical advantages or effects associated with the specific features of implementation over and above the effects and advantages inherent in the excluded subject-matter (see also T 1543/06). In T 336/07 the board concluded that the subject-matter of the claims did not involve an inventive step. In T 1782/09 where the application concerned a game apparatus the board stated that "game rules" form part of "the regulatory framework agreed between [or with] players concerning conduct, conventions and conditions that are meaningful only in a gaming context. The board was unable to identify any further technical effects in the particular manner of technical implementation that might have rendered it non-obvious to the skilled person.
In T 1225/10 the board also adopted the approach set out in T 1543/06 and held that it was decisive how excluded subject-matter was technically implemented, and whether that implementation was obvious. Such a consideration focused on any further technical effects of the implementation of the excluded subject-matter over and above those inherent in the excluded subject-matter itself (T 1543/06, T 1782/09). In the case at issue the board came to the conclusion that using points on the player character that overlapped with a target object was a computationally effective and efficient approach to determine the collision side on a target object for a variety of such objects. That effect was not the inevitable result of programming the game rules per se. It was rather the direct technical consequence of the particular technical way selected data was used to determine a display state. Therefore the technical effect was affirmed.
In T 1467/21, the board held that under the Comvik approach administrative settings related primarily to customer or player satisfaction could be taken into account in the formulation of the objective problem as non-technical constraints.
In T 686/22, the board adopted the approach as set out in T 1543/06 (above). Thus, only those features that contributed to technical character were to be taken into account when assessing inventive step. That requirement cannot rely on excluded (non-technical) subject-matter alone, however original it may be. The mere technical implementation of something excluded cannot therefore form the basis for inventive step. Rather, it is necessary to consider in detail how that matter has been technically implemented. The case concerned a game console. The board found a game rule underpinned the feature distinguishing the application from the prior art, which was considered not inventive.
- T 0185/25
In T 185/25, the claimed invention related to a computer-implemented method for facilitating a player’s device to execute an interactive live game. A key aspect was the synchronisation between a live game video stream (including video from a live studio), and game events generated by server logic in response to player inputs. The opposition division had revoked the patent for lack of inventive step, and the proprietor had appealed. At the request of the Unified Patent Court, where parallel proceedings involving the opposed patent were pending, the board accelerated these appeal proceedings. The prior art showed a gaming system including a live gaming studio capturing video streamed to players, game events and gaming activity information also distributed to players. Cuepoints in the video stream were used to aid synchronisation between video and game events at the player’s device. In comparing the claimed invention with the closest prior art document D5, the board identified two distinctive features of claim 1.
(i) The game display data sent from the server related to the executed game, rather than generic operator content.
(ii) Synchronisation using timestamps attached to both the live video stream and game events, instead of using cuepoints as in D5.
Regarding distinguishing feature (i), the opposition division and the parties agreed that the effect provided by this feature was that it enhanced the user experience in playing the game as it amplified the sensation that they participate in a live game. The board had doubts whether this could be considered a technical effect. This effect was obtained by the content of the game display data, i.e. that the game display data are related to the game being executed (as in claim 1) in contrast to operator specific data unrelated to the played game (as in D5). The only difference lay in the cognitive content of the game display data. In the board's view, this feature related to presentation of information as such and therefore could not be considered to contribute to an inventive step within the meaning of Art. 56 EPC.
Even if the identified effect were to be considered a technical effect, the board agreed with the opposition division that it would be obvious for the skilled person to replace the displayed operator specific content with content related to the game being executed in order to enhance the player's experience.
Regarding feature (ii), the board held that synchronisation as such is a technical problem, i.e. aligning asynchronously received game events and video. The claimed use of timestamps (event timestamps and video timestamps) is a method to solve this synchronisation problem. However, the board found that there was no particular technical advantage of using timestamps over the cuepoint method in the prior art. Both ways result in the player’s device synchronising game events with video. Therefore, the only technical effect of distinguishing feature (ii) was to provide an alternative way of facilitating the synchronisation of the live game video stream and the game events at the player's device. According to the board, there was no particular technical advantage by using the solution of the claimed method rather than the one of prior art D5. The parties did not identify any such advantages, either. The board saw the only technical effect of this feature as offering an alternative synchronisation method – not a technical improvement over the prior art.
The board upheld the opposition division’s finding that the claimed subject-matter lacked inventive step (Art. 56 EPC).