T 0446/09 (Adjusting Icons/RESEARCH IN MOTION) of 5.12.2012

Summary of Facts and Submissions

I. The appeal lies against the decision of the examining division, dispatched on 8 Septem ber 2008, to refuse European patent application 06121142.1 for lack of novelty or inventive step, Articles 54 (1,2) and 56 EPC 1973 in view of the following document:

D1: US 2005/0212911 A1.

II. A notice of appeal was filed on 10 November 2008, the appeal fee being paid on the same day, and a statement of grounds of appeal on 7 January 2009. The appellant requested that the deci sion be set aside and a patent be granted based on claims according to a main or two auxiliary requests filed with the grounds of appeal.

III. In an annex to a summons to oral proceedings the board introduced under Article 114 (1) EPC 1973 as D4 a do cument from the European Search report which had not been discussed during examination, namely:

D4: US 2005/0154798 A1,

and argued that D4 was more appropriate than D1 as a star ting point for assessing inventive step. The board also set out its preliminary opinion that inter alia the claimed invention lacked an in ven tive step over D4.

IV. In reply to the summons, on 26 October 2012, the appellant filed amended claims according to a main request and 1st to 3rd auxilia ry requests.

V. Claim 1 according to the main request reads as follows:

"A display management system to provide an automatically adjusted size for an icon (304) displayed in a display (14) of an electronic device (10) to facilitate readability ofan [sic] icon, the system being responsive to ambient movements of the device, the system comprising:

a sensor (238,242) providing a sensor signal responsive to an ambient movement of the device;

a movement detection module (204) connected to the sensor analyzing the sensor signal and providing a movement detection signal when the sensor signal is determined to exceed a value predetermined to represent a significant ambient movement of the device (10);

a graphical user interface module for generating the icon (304) on the display (14) in a default size; and

a displayed element adjustment module (222F) for automatically changing the size of the icon (304) to a larger size and adjusting a background pattern associated with the icon (304) on the display (14) to facilitate readability of the icon after receiving the movement detection signal."

Claim 1 according to the 1st-3rd auxiliary requests, respectively, is identical to that of the main request except that in the last phrase relating to the background pattern between reference numeral (14) and the word "to" additional features are introduced, namely in claim 1 of the 1st auxiliary request:

"... such that the background pattern flashes ...",

in claim 1 of the 2nd auxiliary request:

"... such that the geometric shape of the background pattern changes ...",

and in claim 1 of the 3rd auxiliary request:

"... such that the geometric shape of the background pattern changes and the background pattern flashes ...".

All requests contain a further independent method claim, the wording of which corresponds closely to the respec tive system claim 1.

VI. The appellant has pointed out that the relevance of D4 was first emphasized by the board in the annex to the summons to oral procee dings and therefore requests, as a matter of fair pro cedural treatment, that the board exercise its discre tion under Article 111 (1) EPC to remit the case to the first instance for further prose cu tion. Should the board choose not to remit the case, the appellant requests that the board admit amended claims 1 to 24 according to the main request and 1st to 3rd auxilia ry re quests as filed on 26 October 2012, that the oral proceedings be cancelled and that a patent be granted based on one of the four requests.

VII. In a letter received on 28 November 2012 the appellant's representative informed the board that he was instructed not to attend the oral proceedings.

VIII. On 5 December 2012 the oral proceedings were held as scheduled in the absence of the appellant, and at the end of the oral procee dings the chairman announced the decision of the board.

Reasons for the Decision

The admissibility of the appeal

1. In view of the facts set out under points I to II above, the appeal is admissible.

The request for remittal in view of D4

2. The appellant cites a number of board of appeal deci sions in order to show that "in ex parte appeal pro cee dings, if a document is relied upon during the appeal proceedings and it is admitted because it is relevant, the case has often been remitted to the department of first instance" and argues that the board should do the same in this case as a matter of fair procedural treat ment. The appellant does not argue that the boards sys tematically decide in favour of remittal in such cases, nor is this actually the case.

2.1 Under Article 114 (1) EPC 1973 the board shall not be restricted to the facts provided by the appellant, and thus may introduce a new document of its own motion, and under Article 111 (1) EPC 1973 the board has dis cre tion to exercise any power within the competence of the department responsible for the decision appealed, which includes the competence to assess the patenta bi li ty of the claimed invention in view of the new docu ment. While this alone contradicts an uncon di tional right of the appellant to have all issues de cided upon by two instances (see e.g. J 0006/98, rea sons 4), the board agrees with the appellant that the board shall exercise its discretion in a fair manner in view of the circum stan ces of the in dividual case.

2.2 In the present case, although document D4 was not re ferred to in examination, it was mentioned as one of three documents in the European Search Report. Given that D4 is neither very long nor very complex, the board would have expected the appellant to have studied D4 already on receipt of the search. The board also con siders that the need to study D4 as a document newly introduced during the appeal procedure does not con sti tute an undue burden on the appellant and, in par ti cu lar, does not affect the appellant's right to be heard.

2.3 The board fur ther notes that, as argued in the summons (points 5 and 7.1), D4 relates to the same field as the inven tion and addresses the same technical problem as that dis cussed in the present application. The intro duction of D4 thus did not necessitate a change in per spective on the invention nor a sub stan tial change of the technical problem to be consi dered.

2.4 The board therefore cannot see any specific circum stan ces in the present case which would make it appro priate, let alone necessary, to remit the case for fur ther pro secution to the department of first instance and there fore refuses the appellant´s request to this effect.

Admissibility of the new requests

3. The independent claims of the main request were amended to spe cify that, in addition to increasing the size of an icon, the back ground pattern associated with the icon is adjusted. The auxiliary requests also contain this feature and specify it in more detail. The board considers this as a rea sonable reaction to the board's preli mi na ry assess ment of inventive step, especially in view of newly in troduced document D4. The new features, not be ing of par ticular complexity, can be dealt with by the board without undue delay. Moreover, since they were, in gene ral terms, al rea dy addressed by original claim 6, which spe cified that "a background feature associated with said icon" be adjusted, there is no doubt that it has been searched. The board thus exer ci ses its dis cre tion under Article 13 (1) (3) RPBA to admit the new requests.

The appellant's request not to hold oral proceedings

4. Under Article 116 (1) EPC 1973, oral proceedings shall take place not only at the appellant's request but also at the instance of the board if it considers this expe dient. In view of its decision not to remit the case to the first instance, the board indeed considers it to be expedient to hold oral proceedings in order to bring the case to a conclusion, and therefore refuses the appellant's request to cancel the oral proceedings.

The appellant's absence from the oral proceedings

5. The appellant was duly summoned, but did not attend the oral proceedings. According to Article 15 (3) RPBA, the board is not obliged to delay any step in the procee dings, including its decision, by reason only of the ab sence at the oral proceedings of any party duly summoned who may then be treated as relying only on its written case.

Article 123 (2) EPC

6. The board is satisfied that the amended claims do not go beyond the application as originally filed.

The invention

7. The application is concerned with the problem that in for mation displayed on a mobile device is less readable when used while the user is moving or travelling (see the published de scription, paragraph 4). As a solution it is proposed to equip the device with a sensor for mea su ring ambient motion and, if this sensor measures motion above a cer tain, configurable threshold, to enlarge dis play ele ments such as icons and/or text. Alter native or addi tio nal ways to improve legibility are also dis closed, in particular that the background ele ment associ a ted with an icon may be selected from diffe rent geome tric shapes or that it may flash (see paragraph 59). When the de vice stops moving the display elements are redrawn in their smaller default size (see e.g. para graphs 63-70).

The prior art

8. Document D4 discloses a mobile device and is concerned with the problem of facilitating user input when the de vice is in motion because the user is walking or sitting in a vehicle (pa ragraph 8). As a solution it is proposed to equip the de vice with at least one sensor for sensing motion of the environment and, depending on the signal from the sensor, to enlarge icons or control ele ments such as a scroll bar on the user interface. When the sensor signal indi cates that the device has stopped moving, the user in ter face returns to its nor mal mode of operation. In ter alia this means that icons enlarged during "mobile mode" will be displayed at a normal size again (see pa ra graphs 22, 24, 29 and 31).

Inventive step, main request

9. D4 does not explicitly mention the detection of a "sig ni ficant ambient movement" by determining that the sensed signal exceeds a "predetermined value". However, the board notes that the device of D4 must be able to distinguish between "normal mode" and the "mo ving mode" on the basis of the sensed signal (see e.g. para graphs 22 and 29). On the assump tion that the sensor will in many situations measure some residual motion even in "normal mode", the board regards it as implicit that the device of D4 will switch to "moving mode" only when the sensed signal is above a given thre shold. This argument was set out in the annex to the summons to oral proceedings (point 8.1) and was not challenged by the appellant.

10. According to the claims and the description (see e.g. paragraphs 4 and 35), the adjustment of the icon size and of the associated background pattern is meant to "facilitate reada bi li ty" of the display ele ments.

10.1 The board is of the opinion that increasing the size of an icon automatically and in an immediate sense faci li ta tes its readability too. In this respect, hence, easi er readability does not constitute a diffe rence of claim 1 over D4.

10.2 This notwithstanding, the board considers that to "fa ci li ta te readability" is not a feature of the claimed in vention but rather states its intended effect. The appellant apparently shares this view when it proposes, in its reply dated 25 October 2012 (4th page, 6th para graph), that a suitable objective tech ni cal problem solved by the invention is "how to facilitate read ab i li ty of an icon on a display of a mobile device in a moving environment."

10.3 The board also considers that many adjustments of the back ground pattern of an icon do not facilitate reada bi lity at all. A background pattern may also dis tract the user from the icon itself and thus even reduce the icon's reada bi lity. The board considers that this may in particular be the case for background patterns which are rendered in spe cific geometric shapes or which flash. Hence the board is not con vinced that the adjustments of the background patterns specifically disclosed (and claimed in the auxiliary re quests) actually facilitate readability.

10.4 The board considers that the skilled person would un der stand the adjustment of the background patterns as constituting a form of highlighting of display elements so as to make them more easily visible.

11. In view of the foregoing, the board concludes that the subject-matter of claim 1 of the main request differs from the disclosure of D4 in that

a) in response to the detection of ambient movement, the background pattern associated with the icon is adjusted,

and that this difference solves the problem over D4 of

"how to facilitate visibility of an icon on a display of a mobile device in a moving environment."

11.1 The appellant argues (see response of 25 October 2012, page 4, 8th paragraph) that D4 focuses entirely on in crea sing the icon size and offers nothing to motivate the skilled person to modify the teaching of D4 towards the invention. Moreover the appellant argues that D4, by accepting the drawback of enlarged icons reducing the available display space, rather discourages the skilled person from considering the alternative option accor ding to the invention which makes better use of the available display space.

11.2 The board notes that the claimed invention re quires both the increased icon size and the adjusted back ground patterns, so that the alleged saving of dis play space when adjusting the background pattern in stead of increasing the icon size is not an effect of the inven tion as claimed.

11.3 Beyond that, the board disagrees with the appellant's implied suggestion that D4 contains no hint for the skilled person to modify the disclosed user interface. D4 discloses adapting the user interface of an electro nic device in response to ambient motion. D4 discloses some specific such adaptations, especially that the size of the icons or other display control elements is increased (paragraph 31; claim 8) and that the "display con tents" can be re-arranged or that display elements can be removed or added (paragraph 29; claim 10). In the board's view, the variety of alternatives dis closed in D4 would prompt the skilled person to consider which further adaptations of the user inter face might serve the same overall purpose of making the device easier to use when in motion. The board therefore considers that the above technical problem is one which the skilled person would naturally address in an attempt to improve the teaching of D4.

11.4 The board further considers that at the priority date it was common practice in the art to increase the vi sibility of elements on a com pu ter display by some form of highlighting. Textual ele ments, for example, were often highlighted by under lining or framing. In the board's view, underlining and fra ming are adjustments of the background pattern of the textual element. The board considers that the skilled person would, by ana logy, also apply such standard high lighting methods to icons so as to increase their visibility.

11.5 Hence the board concludes that the subject-matter of claims 1 and 15 of the main request lacks an inventive step over D4 in view of common knowledge in the art, Article 56 EPC 1973.

Inventive step, auxiliary requests

12. The independent claims of the auxiliary requests differ from those of the main request by requiring specific ad justments of an icon's background pattern, namely flashing and/or changing its geometric shape.

12.1 The board considers that these two adjustments, separa tely and in combination, are obvious - and, in fact, commonly used - ways of highlighting display elements on a computer screen, so that, in the board's judgment, the above assessment of the main request also applies to the auxiliary requests.

12.2 As a consequence, the board also finds that the subject-matter of claims 1 and 15 of the auxiliary requests lacks an inventive step over D4 in view of common knowledge in the art, Article 56 EPC 1973.

Summary

13. There not being an allowable request, the appeal has to be dismissed.

ORDER

For these reasons it is decided that:

The appeal is dismissed.