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Simon Holzer
Is an animated lung on a display of a ventilator machine merely an unpatentable display of information or is it a technical feature that can provide an inventive step? For the first time, the Swiss Federal Supreme Court spoke on the issue that such graphical user interfaces can be technical, and affirmed a Swiss Federal Patent Court’s decision (see BGer 4A_609/2019, July 16, 2020 affirming BPatGer O2017_007 of November 1, 2019). The Courts’ holdings are in line with the case law of the EPO’s Boards of Appeal and lay out the requirements that can render the display of information technical for purposes of the European Patent Convention (EPC).
In this case going back to 2017, the Federal Patent Court prohibited imtmedical AG (IMT, in the meantime, has been acquired by Vyaire Medical) from trading certain ventilating machines because they infringed Hamilton Medical AG‘s Swiss designation of the EP 1 984 805 B1 patent. IMT appealed to the Federal Supreme Court, claiming, among other things, that the patent concerns non-patentable subject matter under Art. 52 EPC, and that the graphical features were non-technical and could not contribute to an inventive step under Art. 56 EPC. The Federal Supreme Court dismissed the appeal and affirmed the Swiss Federal Patent Court’s decision.
Hamilton’s patent concerns medical machines called ventilators that physically move breathable air into and out of a patient’s lung to deliver breaths when the patient is unable to breathe himself. Similar machines are frequently in the news now for COVID-19 treatment. The patent is also about the machine’s display: it claims inter alia an animated lung that contracts and expands with every breath of the patient, and uses graphical elements to illustrate a number of relevant machine parameters in this single, graphical animation.
The features of the independent patent claim read as follows:
1A A device with a screen
1B in order on this to represent acquired, changing values with a mechanical ventilation of a patient,
1C with means for acquiring at least three changing values of different origin,
1D
[a] and means for representing the values,
[b] which permit the acquired values to be qualitatively represented together on the screen
[c] in a single element
1E
[a] said graphical element including
[b] a pictorial representation of a lung shape,
[c] a current design of the lung shape containing qualitative information on the compliance of the lung,
characterized in that
1F
[a] the means for representing [the] values are designed such
[b] that a volume change of the ventilated lung which is acquired with each breath, is represented in an animated manner
[c] by way of a size change of the lung shape corresponding to this volume change,
[d] involving an animation of a contour line of the lung shape,
[e] the design of which containing qualitative information on the compliance of the lung.
It was disputed among the parties whether the features 1F [b] and [c] (bold above) are decisive for novelty and inventive step.
The appellant IMT argued that the claimed animation of the lung was not a technical feature because it represents a mere “aesthetic creation” for the “presentation of information” and makes the invention unpatentable under Art. 52(2)(b) and (d) EPC, respectively. IMT argued that such a non-technical animation could not be used to establish an inventive step under Art. 56 EPC. IMT argued that there was no improved assistance of a user of a claimed ventilation machine and there was no plausible contribution to a solution of a technical problem at all.
Relying on COMVIK, the Court restated that a single technical feature suffices to render a combination invention of technical and non-technical features, a so-called “mixed” invention, patentable (see also EPO Boards of Appeal, Decision T 641/00). The Court made clear that whether or not the patent improves over the prior art was irrelevant for examining the invention’s technical nature. In the case at hand, the Court held that undisputedly technical features such as the machine’s display clearly made the invention as a whole technical and, therefore, patentable.
The next issue was the examination of the inventive step.
It is well-established that a claim feature that does not technically contribute to the claimed invention cannot be used to establish inventive step (Swiss Supreme Court referring to T 641/00, T 258/03 and T 531/03). Accordingly, the crucial question was whether displaying the animated lung according to the features 1F [b] and [c] on the machine’s display could be considered a technical feature for the purposes of Art. 56 EPC.
Agreeing with the Federal Patent Court and referring primarily to the EPO decisions T 1802/13 and T 336/14, the Federal Supreme Court held that the presentation of information can be technical when the information presented is:
- about the technical state of the machine (also T 1741/08);
- credibly assisting the user in performing a technical task; and
- providing a continued and guided human-machine interaction.
The Court affirmed that the Federal Patent Court correctly held that Hamilton Medical’s patented ventilator display meets these requirements.
The Federal Patent Court had found that the volume changes that the animated lung shows for every patient’s breath, reflect the breath volume and breath frequency set at the ventilator. Hence, this information illustrates the settings, i.e. the technical state, of the machine.
About whether the assistance of the user was “credible”, the Federal Supreme Court held that the Federal Patent Court did not expressly address the question, but found that the credible assistance was evident because the animated lung was useful for the medical personnel to set the machine’s operating parameters according to the patient’s needs.
The Court also affirmed that the animation of the lung provided for a continued and guided human-machine interaction. Specifically, the Court seems to have interpreted this element as information that guides the user, and that changes in response to the user’s action. In other words, the element is to be interpreted as a feedback loop in which the user’s actions feed back into the information display, thus providing the user continued guidance.
The Court supported its finding by referring to T 1802/13 where the Board of Appeal held that merely displaying the information in a way that is easier to understand does not suffice if there is no guided interaction that is causally supporting the user. Similarly, referring to T 336/14, the display of static data is not enough because again the element of continued interaction, of feedback, between human and machine is lacking. On the other hand, the Court referred to the depiction of the orientation of a medical ball joint implant during surgery as an example where the surgeon is credibly assisted in correctly positioning the implant (Guidelines for Examination in the European Patent Office, Part G, Chapter II, Section 3.7).
The Federal Patent Court left it open whether the technical solution was an improvement or a mere alternative over the prior art because also a mere alternative would be inventive.
Therefore, the Federal Supreme Court affirmed the Federal Patent Court’s holding that the animated lung on the ventilator machine’s display was a technical feature and found that the Hamilton Medical’s patent was inventive and upheld a finding of infringement and confirmed the injunction against IMT.
