T 2379/09 (Replaying web page requests/BMC) of 17.9.2013

Summary of Facts and Submissions

I. The appeal lies against the decision of the examining di vision, with written reasons dispatched on 21 July 2009, to refuse the European patent application no. 00977108.0 because it did not comply with Article 123(2) EPC. In an obiter dictum the decision also raised objections under Article 84 EPC 1973.

II. A notice of appeal was filed on 21 September 2009, the appeal fee being paid on the same day. A statement of grounds of appeal was received on 20 November 2009. The appellant requested that the decision under appeal be set aside and that a patent be granted based on claims 1-23 filed with the grounds of appeal, in combination with the description pages 1, 1a, 1b, 3, 3a, 3b, 4, 4a, 4b, 9 and 9a and drawings sheet 1/1 as filed with the grounds of appeal and description pages 2 and 5-8 as pub lished.

III. With a summons to oral proceedings, the board informed the appellant about its preliminary opinion according to which the main ground for refusal, Article 123(2) EPC, was overcome by the amended claims. The board raised a few clarity objections and expressed its in ten tion to remit the case for further prosecution should these clarity objections be overcome.

IV. In response to the summons, with letter dated 10 August 2013, the appellant filed an amended set of claims 1-23 and requested that the case be remitted to the examining division without holding oral proceedings.

V. The board then cancelled the oral proceedings.

VI. Independent claims 1 and 13 read as follows:

"1. An iterative process for replaying a predefined path from an intermediate server (10) through a set of web pages in the order the web pages were originally made,

wherein requests for the web pages have been saved in a request history built by the intermediate server (10) prior to the replay process, during the process beginning from a starting URL of an originating web page (35) repeating the following steps until the path has been fully replayed or an error has occurred:

selecting a saved request for a target web page (36) from the request history;

if the selected request is a form request, selecting (90) a best-fit form to which a replay request for the target web page (36) should be later made from a set of forms in the originating web page (35), in order to avoid errors due to expiration or change in dynamic content when replaying the target web page (36);

if the selected request is not a form request, selecting (110) a best-fit URL in the originating web page (35) as a target URL to which a subsequent replay request should be made; and

sending (140) the replay request for the target web page (36) to a target web server (30), the replay request made to the selected best-fit form or to the best-fit URL.

13. A system for replaying a predefined path through a set of web pages from an intermediate server (10) in the order the web pages were originally made,

wherein requests for the web pages have been saved in a request history built by the intermediate server (10) prior to replaying the path,

the system comprising: a computer readable medium; and a set of software instructions stored on the computer readable medium operable to cause a computer to beginning from a starting URL of an originating web page (35) repeat the following steps until the path has been fully replayed or an error has occurred:

select a saved request for a target web page (36) from the request history;

if the selected request is a form request, select (90) a best-fit form to which a replay request for the target web page (36) should be later made from a set of forms in the originating web page (35), in order to avoid errors due to expiration or change in dynamic content when replaying the target web page (36);

if the selected request is not a form request, select (110) a best-fit URL in the originating web page (35) as a target URL to which a subsequent replay request should be made; and

send (140) the replay request for the target web page (36) to a target web server (30), the replay request made to the selected best-fit form or to the best-fit URL."

Reasons for the Decision

The invention

1. The application generally relates to the problem of asse ssing whether a web site achieves the company's per formance goals and quality standards. A known way to do this is, according to the description, to record the a "user's path" through a web site in terms of the HTTP re quests made by the user and to "replay" it la ter so that the owner of the web site can reproduce the user ex perience of the web site (see description, p. 1, lines 11-19; this and all further references herein to the descrip tion relating to the application as pub lished). It is explained that this technique, when li mi ted to "simply replaying a series of requests", does not work for dynamic content (session IDs, forms) because some of it may no longer be available at the time of replay. A naive replay of dynamic content will thus cause errors (see p. 1, lines 21-23; p. 6, line 33 - p. 7, line 1).

1.1 The invention is meant to modify known replay methods so as to be suitable for dynamic content, too.

1.2 As a solution, the application discloses that an "in ter mediate server" builds a "request history" of the user requests and that the user's path is replayed "from" that in ter mediate server (see p. 3, lines 1-2, and p. 4, 10-11). The replay process iterates over the re quest his tory and "sends out the requests in the order they were originally made" (p. 4, lines 15-16). Each request is from an "originating page" to a "target web page". The iteration begins with a "starting URL" (see e.g. p. 3, lines 4-7) as the initial "originating page" and in each iteration step tries to replay the next request "for a target web page" from the current "originating page" (p. 3, lines 29-31). Doing this, it is determined whether the currently "selected request" is a form re quest or not (see p. 5, line 5 ff. and p. 7, line 5 ff.). In the former case, "a best-fit form from the potential forms located on the current configuration of [the current] originating page" is selected and sent as the replay request, in the latter case, a "best-fit URL" is se lec ted (p. 5, lines 12-14; p. 8, lines 15-20; fig. 2).

1.3 The invention is claimed as an iterative process and a system adapted to carry it out (claims 1 and 13).

Article 123(2) EPC

2. The decision under appeal, as the board understands it, found the then pending independent claims 1 and 14 not to comply with Article 123(2) for the following reasons:

a) These claims referred to a saved request merely "corres ponding to" an originating web page, which language implied a broader association between the saved request and the web page than what was origi nally disclosed (reasons of the decision, p. 5, 2nd and 3rd pars.).

b) The claims implied that the selected request read from the request history had the effect of loading the originating web page, whereas the disclosed pro cess in each iteration step rather started from the originating web page "already present (loaded) on the intermediate server" and determined "the best match from within the originating web page" for the tar get web page according to the selected request (rea sons, p. 5, 4th par. - p. 6, 1st par.).

c) Even if, as the applicant had argued, the original appli cation disclosed that also the starting URL could be read from the request history (see par. bridging pp. 5-6), the claims implied that also the "starting URL" would be subject of the "best-fit" ana lysis which was not originally dis closed (reasons, p. 6, 2nd par.).

2.1 Re. a) The amended claims no longer refer to "a saved request corresponding to the originating web page" nor to a "selected request for an originating web page". Ra ther, they now re fer to a "saved request for a target web page".

2.2 Re. b) The amended claims now clarify that each ite ra tion step analyses the "saved request for a tar get web page" with respect to the originating web page so as to deter mine a web page to be replayed. The amended claims thus avoid the implication that the selected re quest has the effect of loading the originating web page.

2.3 Re. c) The amended claims also specify the application of a "best-fit" analysis only with reference to the "tar get web page[s]" of selected requests and thus do not specify that the "starting URL" is subject to a best-fit analysis.

2.4 The board therefore agrees with the appellant that the amend ments overcome the objections under Article 123(2) EPC in the decision under appeal.

3. The board notes that claims 1 and 13 refer to a "set of web pages in the order the web pages were originally made". In the board's view the skilled person would clear ly recognize this as an obvious drafting mistake: It is apparent for the skilled that the order of re play is not meant to be de ter mined by the order in which the web pages were originally made but by the or der in which the requests to the web pages were originally made. In the board's view this is evident, inter alia, from the term "request history" in which, according to the claims, "requests for the web pages have been saved" and from the description (see esp. p. 4, lines 15-16). This draf ting mistake thus does not constitute a deficiency under Article 123(2) EPC, and is correctable under Rule 139 EPC.

4. Also beyond the above the board is satisfied that the amended claims are dis closed in the application as ori gi nally filed (see the references given under point 1) and therefore conform with Article 123(2) EPC.

Article 84 EPC

5. In a section entitled "obiter dicta" the decision under appeal argues that then claims 1 and 14 do not conform with Article 84 EPC 1973 for not being clear and for be ing broader than justified by the description and draw ings, because the claims

i) did not specify where the request history is situ ated in the system whereas the description and the drawings conveyed the impression that the saved request history can only be located in the inter mediate server (reasons 3.1);

ii) left unclear the structure of the request history (reasons, 3.2);

iii) lacked the feature of "receiving/loading at the in ter mediate server the originating web page prior to the execution of [then] steps (a) to (d)", i.e. be fore "the content of the originating web page is ana lysed" (reasons 3.3); and

iv) were unclear as to how "a form can be selected as a URL" (reasons 3.4).

5.1 Re. i) Amended claims 1 and 14 now specify that the path of web pages is to be replayed "from an intermediate server", using a "request history built by the inter me diate server" in which "requests for the web pages have been saved" . The term "saved requests" in the iteration as claimed is a clear reference to the requests saved in the request history. In the board's view, therefore, amen ded claims 1 and 14 now imply that the request his to ry is "located in the intermediate ser ver" so that the examining division's objection has be come moot.

5.2 Re ii) From the claim language it is clear that the "saved requests" selected from the request history are "for a target web page" and that the iteration relates to this target web page when selecting a best-fit form or a best-fit URL as a page "to which a replay request for the target web page ... should be later made". That the claims lack further detail about the structure of the request history does not, in the board's view, ren der the claims unclear as the structure of the request history has no impact on the replay mechanism itself.

5.3 Re iii) By way of amendment the claims now make clear that the "originating web page" must be available before and for the subsequent analysis. The amendments also specify sufficiently, in the board's view, the rôle of the intermediate server for the claimed process and system of replaying web pages.

5.4 Re. iv) The amended claims now specify that a "best-fit form" is selected "from a set of forms in the origina ting web page" and, separately, a "best-fit URL" from within the originating web page. The claims distinguish between "saved requests" which are "form requests" from others which are not. The skilled person would under stand that the form requests thus are a special form of saved requests which are identifiable as relating to "forms". The description explains that this could be done by noting in the request history that the URL of a given request was "associated with a 'FORM' tag" (see sentence bridging pp. 4-5). Once form requests are dis tinguished, the determination of a best-fit form would not have to be substantially different from the deter mi nation of a best-fit URL as the skilled person would un derstand. Although the notion of "best-fit" itself is not detailed further in the claim, the board considers that the skilled person would know ways of comparing URLs with each other according to some sui table metric which identifies certain matches as "best" ones. The board therefore is of the opinion that the selecting of a "best-fit form ... from a set of forms in the origi na ting web page" may be broad but is not in con flict with Article 84 EPC 1973 for being unclear.

Articles 54 and 56 EPC 1973

6. The appellant also provides arguments why the claimed in vention were new and inventive over two documents D1 and D2.

6.1 These documents were introduced by the examining di vi sion in its first communication dated 22 August 2005 to gether with the objection that the original claims 1-27 lacked an inventive step over D1 and D2 (see that com mu nication, point 2). The argument was detailed however only with regard to original claims 1-3 and 13-15 (see points 2.1-2.3). In response to this communi cation, with sub mission of 6 March 2006, the appellant filed amended claims and argued why it were believed they overcame the inventive step objection.

6.2 After that, the examining division did not address in ven tive step again. However, in response to objections under Article 84 EPC 1973 and 123(2) EPC the claims were amended several times. Prima facie at least the initial inventive step objections do not apply to the amended claims anymore.

Summary

7. Since the amended claims have overcome, to the board's satisfaction, the main ground for refusal, the objection under Article 123(2) EPC, and the clarity objections made obiter the decision under appeal must be set aside. Since however at least the inventive step of the claimed invention has not been conclusively examined for the pen ding claims, the board exercises its dis cre tion under Article 111(1) EPC 1973 and remits the case to the de part ment of first instance for further prose cu tion.

ORDER

For these reasons it is decided that:

The decision under appeal is set aside and the case is remitted to the department of first instance for further prosecution.