T 2469/12 (Generating a subgroup of media items/MICROSOFT TECHNOLOGY LICENSING) of 15.5.2018

Summary of Facts and Submissions

I. The applicant (appellant), which at the time was Microsoft Corporation, appealed against the decision of the Examining Division refusing European patent application No. 06000325.8.

II. In the course of the appeal proceedings, the application was transferred to Microsoft Technology Licensing, LLC, which thereby obtained the status of appellant.

III. The Examining Division decided that the subject-matter of the independent claims of both the main request and the first auxiliary request lacked novelty over the prior art disclosed in the following document:

D4: US 2003/0236582 A1, published on 25 December 2003.

Moreover, the Examining Division decided that the independent claims of the second auxiliary request lacked inventive step over document D4.

IV. In the statement of grounds of appeal, the appellant requested that the decision be set aside and that a patent be granted on the basis of one of the main and two auxiliary requests considered in the contested decision.

V. In a communication under Article 15(1) RPBA accompanying the summons to oral proceedings, the Board inter alia expressed its provisional opinion that the subject-matter of claim 1 of all requests lacked inventive step in view of document D4.

VI. With a letter dated 4 April 2018, the appellant submitted a main request and two auxiliary requests replacing all prior requests.

VII. Oral proceedings were held as scheduled and the appellant was heard on the relevant issues. At the end of the oral proceedings, the chairman pronounced the Board's decision.

VIII. The appellant's final requests were that the decision under appeal be set aside and that a patent be granted on the basis of one of the main and two auxiliary requests submitted with the letter dated 4 April 2018.

IX. Claim 1 of the main request reads as follows:

"A method for generating a subgroup (85) of one or more media items from a library (65) of media items, said method comprising:

monitoring a user control action during a playback experience with the library (65);

choosing a selecting filter (45) based upon the monitored user control action, the selecting filter (45) comprising two or more filters;

at least one of adding to, removing from, and modifying at least one filter assigned to the user control action in the selecting filter (45) in response to the control action;

generating a subgroup (85) of a plurality of media items selected from the library of media items by applying the selecting filter (45) to the library of media items;

choosing an ordering filter (51) based upon the monitored user control action, the ordering filter (51) comprising two or more filters;

at least one of adding to, removing from, and modifying at least one filter assigned to the user control action in the ordering filter (51) in response to the control action; and

ordering said subgroup (85) of media items by applying the chosen ordering filter to the subgroup of media items;

presenting the user with a selection element for providing feedback related to the playback experience regarding one or more of a media item, an artist, an album, and a genre."

X. Claim 1 of auxiliary request I differs from claim 1 of the main request in that it adds the text "and based upon past user control actions stored in a memory (61)" after "based upon the monitored user control action" in the steps of choosing a selecting/ordering filter and in that the last two steps of ordering and presenting have been replaced as follows:

"ordering said subgroup (85) of media items into an ordered subgroup (91) of media items by applying the chosen ordering filter to the subgroup of media items; and presenting the ordered subgroup (91) of media items selected by the selecting filter (45) for viewing and playback (95) on the media player program."

XI. Claim 1 of auxiliary request II differs from claim 1 of auxiliary request I in that the word "and" before "presenting the ordered subgroup" has been deleted and the following text added at the end of the claim:

"; and

presenting a selection element for providing feedback related to the playback experience to the system regarding one or more of a media item, an artist, an album, and a genre, and adding, removing, or modifying at least one of said one or more selecting filters (45) and said one or more ordering filters (51) based upon the feedback,

the selection element (633) including a graphic being adapted so that clicking a mouse pointer (637) over a first portion of the graphic displays a positive selection list (647) of feedback choices, each positively associated with the media item, and clicking the mouse pointer (637) over a second portion of the graphic displays a negative selection list (657) of feedback choices, each negatively associated with the media item."

XII. The arguments of the appellant which are relevant to the decision are discussed in detail below.

Reasons for the Decision

1. The appeal complies with the provisions referred to in Rule 101 EPC and is therefore admissible.

The invention

2. The application relates to the generation of a playlist, i.e. a subgroup, consisting of one or more media items selected from a library (abstract). In its background section, it explains that conventional techniques provided the user with only limited assistance in creating playlists, such as sorting by media type or artist, and required the disclosure of personal preferences to a server, which was not desirable (paragraph [0007]).

The method according to the invention monitors user playback control actions (such as skipping or repeating play of a media item) during a playback experience with the library on a media player and, based on the monitored user playback control action, chooses a selecting filter to select a subgroup of the media items and an ordering filter to order the items in the selected subgroup (paragraphs [0008], [0011], [0039] to [0046]; Figure 1). A selection element such as a smiling or frowning face for providing feedback related to the playback experience regarding one or more of a media item, an artist, an album, and a genre is presented to the user. In one exemplary user interface, a click on the selection element displays a selection list of feedback choices, each choice being positively or negatively associated with a media item (paragraph [0060]; Figures 22 and 23).

Main request

3. Claim 1 of the main request relates to a method for generating a subgroup of one or more media items from a library of media items which comprises the following steps itemised by the Board:

(a) monitoring a user control action during a playback experience with the library;

(b) choosing a selecting filter based upon the monitored user control action, the selecting filter comprising two or more filters;

(c) at least one of adding to, removing from, and modifying at least one filter assigned to the user control action in the selecting filter in response to the control action;

(d) generating a subgroup of a plurality of media items selected from the library of media items by applying the selecting filter to the library of media items;

(e) choosing an ordering filter based upon the monitored user control action, the ordering filter comprising two or more filters;

(f) at least one of adding to, removing from, and modifying at least one filter assigned to the user control action in the ordering filter in response to the control action; and

(g) ordering said subgroup of media items by applying the chosen ordering filter to the subgroup of media items;

(h) presenting the user with a selection element for providing feedback related to the playback experience regarding one or more of a media item, an artist, an album, and a genre.

4. Interpretation of claim 1

4.1 Claim 1 refers to a method of generating a subgroup of one or more media items which comprises a step of generating a subgroup of a plurality of media items (see feature (d) of claim 1). As the step of generating is restricted to the generation of a subgroup of a plurality of media items, the Board, in agreement with the appellant's submissions at the oral proceedings, understands claim 1 to be limited to a method of generating a subgroup of a plurality of media items.

The description in the application as published discloses on pages 14 and 15 various examples of ordering filters, including a full random shuffle, which provides a random ordering of media items, including repetition. Consequently, the Board understands the expression "ordering filter" as providing any arrangement of the media items in the subgroup, including repetition, in order to generate a playlist.

5. Inventive step - Article 56 EPC

5.1 The Board agrees with the Examining Division that document D4 is a suitable starting point for assessing novelty and inventive step and this was not contested by the appellant.

5.2 Document D4 as closest prior art

D4 discloses a method for controlling an audio or a multimedia system and a corresponding system (D4, paragraphs [0006], [0010]; claims 1, 11). The multimedia system can play tracks (e.g. music or multimedia) stored on, for example, a hard disk (D4, paragraphs [0101] to [0104], [0131] to [0139], and [0205] to [0212]). The multimedia system can also be embodied in a vehicle or in other platforms, such as a hand-held device, a mobile phone, a music player, a video jukebox system, a database engine, or a software program such as a web browser (D4, paragraphs [0105] to [0107] and [0130]).

The track to be played at any given time is identified by a next track identifier (D4, paragraph [0104]). The track selection is based on user preference and reaction information or on conventional commands input by the user (D4, paragraphs [0107] and [0108]).

The user interface (D4, paragraphs [0164] to [0178]) includes input via, for example, buttons, knobs and touch panels and output on, for example, a display. The input may include explicit and implicit mechanisms for the user to indicate preferences about tracks and otherwise provide feedback or reactions. The explicit feedback mechanisms can include buttons or other devices that enable users to indicate directly that they like or dislike a track being played (D4, paragraph [0174]). Implicit mechanisms for feedback may also be used: for example, when users press a transport button to skip to the next track, this action can be interpreted as an implicit indication that they did not like the track being played (D4, paragraphs [0109] to [0110]).

5.2.1 The storage in the track selector holds information that enables the system to select tracks for play. Track scoring information may be provided for all of the tracks in the supply of tracks. The track scoring information for all tracks may be updated each time a track is played or a user takes any action through the user interface that reflects user feedback and preferences. Tracks are selected based on their relative scores (D4, paragraph [0111]).

5.2.2 In one simple example of the operation of the system (D4, paragraph [0115]), when users are listening to a track, they may push a preference button that indicates they like the track or another preference button that indicates they dislike the track. In either case, the information about their preference is accumulated and stored as part of a score for that track. At the same time, the preference information is used to change other tracks' score. When users indicate that they dislike the track, the system may jump to another track. Users can again indicate a preference by pushing one of the preference buttons and the information is again used to rescore the tracks. If users allow a track to play through to the end, or press the transport button to force the system to jump to the next track, that implicit preference information is also used for scoring tracks.

5.2.3 The system of document D4 may operate in, inter alia, an automatic selection mode (D4, paragraphs [0140] to [0143]; Figure 6). In this automatic selection mode, the system plays a selection of tracks taken from all tracks available to the system. The user provides feedback on the tracks played, explicitly and implicitly, via a user interface. The system selects the track for the user based on user feedback (emphasising more recent feedback) and a history of recently played tracks (D4, paragraph [0140]). When the system receives a feedback event with respect to the track being played, the system updates the stored tracks graph, which is used to select the next track (D4, paragraph [0142]). Various types of explicit or implicit feedback are disclosed (D4, paragraphs [0232] to [0239]). Implicit feedback includes control actions such as playing from start to finish, increasing the volume, skipping to the next track or terminating playing of the current track.

For the scoring of tracks the system of D4 uses an internal stored tracks graph which represents every track, metadata regarding that track and the relationship between that and other tracks (D4, Figures 8 and 12, paragraphs [0220] to [0230]). The metadata is represented as nodes, for example CD nodes, album nodes, artist nodes, style nodes and genre nodes (D4, paragraphs [0224] to [0228]). Connections between nodes are bi-directional and have a numeric weight representing the strength of the relationship (paragraph [0230]).

The nodes of the stored tracks graph are assigned scores based on explicit and implicit feedback from the user (D4, paragraphs [0240] to [0267]). Because of the connections between the nodes in the graph, feedback applied to one node (e.g. a user response to a track) potentially affects all nodes in the graph. Deductions about the user's responses to each stored track are made on the basis of the user's response to just one of them (D4, paragraph [0241]).

Furthermore, the system may keep track of short-term and long-term preferences (D4, paragraphs [0241] and [0243] to [0260]). The feedback events for a track modify the "accumulatedScore" and "accumulatedWeight" variables of the track node, which represent the long-term preferences of the user (D4, paragraphs [0244] and [0251]). For short-term mood-based preferences, the variable affected by the user's feedback is called "moodBonusScore". For each item of feedback received, all "moodBonusScore" variables are reduced towards zero, i.e. they decay towards zero. This implements the limited memory for the short-term preferences (D4, paragraph [0253] to [0260]). These score-related variables are maintained by each node in the graph (D4, paragraph [0244] to [0250], [0253] and [0253]).

When the system of D4 is in automatic selection mode (D4, paragraphs [0140] to [0143]) and is notified that it is time to pick the next track, it chooses the next track to play on the basis of each node's scores, combined with the current risk tolerance, and a number of other variables (D4, paragraphs [0318] to [0332]). The track selected to be played thus may not be the highest-rated track. Every track, even the one with the lowest score, has some probability of being played in each selection cycle, with the exact probability depending on the system's current risk tolerance. The risk tolerance variable attempts to prevent the system from making two mistakes in a row, while achieving a degree of variation that would not be possible if the system merely played the highest-rated track (D4, paragraph [0319]). Each preset, such as a user station (D4, paragraph [0193]), has a "conservatismThrottle" variable that determines how much risk the system is willing to take in selecting a track that has a relatively low score (D4, paragraph [321]).

5.2.4 The system of D4 discloses several other modes in addition to the automatic selection mode. When operating in a track mode, where only pre-specified tracks such as all tracks on a particular album are played back, the system of D4 offers different options to order the media items (D4, paragraphs [0144] to [0147]), including a shuffle option providing random ordering (D4, paragraph [0146]).

5.2.5 In a search mode (D4, paragraphs [0150], [0153]), the user may select for playback an entire disc, an artist, a genre, or any combination of those. The On-Screen Display (OSD) module of D4 queries the automatic selection module, which implements the automatic selection mode, to retrieve search results using parameters provided by the user to the OSD module (paragraphs [0202] and [0203]). D4 discloses in paragraph [0153] that the system arranges the search results in a playlist.

5.3 The Board considers that a collection of tracks is a "library" of media items, as claim 1 does not specify any particular features of a library. As the method of document D4 automatically picks the next item of music in the automatic selection mode, document D4 discloses a method for generating a subgroup of one or more media items from a library of media items.

5.3.1 Document D4 discloses feature (a) of claim 1 as it monitors user playback control actions such as skipping a track or increasing the volume during the feedback.

5.3.2 As the media item(s) are selected in the automatic selection mode of D4 using, inter alia, the plurality of score-related variables (representing the user's preferences) and the conservatismThrottle variable (representing the risk tolerance), the selection filter applied in D4 comprises two or more filters (D4, paragraphs [0318] to [0332]). Moreover, the selecting filter is chosen and modified on the basis of user control actions (feedback) obtained during the playback experience (at least the scores and the variable conservatismThrottle are modified by the rating actions and other actions such as "next track"). Hence, document D4 discloses features (b) and (c) of claim 1.

5.3.3 However, as the system of D4 uses the selecting filter according to features (b) and (c) only in the automatic selection mode, which selects only a single next track and does not generate a plurality of media items, D4 does not disclose feature (d) of claim 1, but rather the following feature:

generating a subgroup of a single media item selected from the library of media items by applying the selecting filter to the library of media items;

Consequently, the Board agrees with the appellant's argument that D4, when operating in the automatic mode, does not generate a playlist but selects just one track.

5.3.4 Document D4 also discloses feature (h) as the user can press buttons to provide explicit feedback on media items (see D4, paragraphs [0232] to [0239]).

5.3.5 D4 does not disclose, in relation to the automatic mode, features (e), (f) and (g) of claim 1, which relate to the ordering filter and its application to a generated subgroup of a plurality of media items. As the system of D4 selects only a single track, when it is notified to pick a track in the automatic selection mode, there is no need to arrange a plurality of selected tracks into a playlist by means of an ordering filter.

5.3.6 The appellant argued that D4 did not disclose the use of a selecting filter as the scoring of media items was carried out in D4 for all available tracks, i.e. the entire library, not just for a selection.

The Board is not convinced by this argument as the scoring of all items provides the basis for the selection of an item according to the scores as a filtering criterion in D4.

5.3.7 The appellant also argued that according to claim 1 of the main request a subgroup was generated as soon as a filter was modified.

However, claim 1 does not specify when exactly the subgroup is generated. In particular, it does not say that it is generated immediately after the modification of a selecting filter. Hence, the appellant's argument is not convincing.

6. Consequently, the Board considers that the claimed method differs from the method of document D4 of generating, in the automatic selection mode, a media item for playback from a library of media items in that it includes features (e), (f) and (g) and in that it generates a subgroup consisting of a plurality of media items according to feature (d).

6.1 According to the appellant the invention solved the technical problem of how to generate a subgroup of media items, taking into account the control actions of the user. The solution, a specific way of generating such a subgroup, was independent of any subjective user preferences and thus represented a technical method. It included the generation of the subgroup according to a selecting filter, the ordering according to an ordering filter, and the performing of the selecting and ordering according to control actions. D4 was quite different as it did not produce a playlist suiting the user's actual mood, disclosed no ordering according to control actions and provided no list of items to be played.

6.2 The differences between the subject-matter of claim 1 and the system disclosed in document D4 serve to provide a playlist of a plurality of media items ordered on the basis of the user's feedback which reflects the user's subjective preferences for the presentation of the media items. The Board considers that the provision of such an ordered playlist serves the purpose of creating an ordered playlist according to the user's subjective preferences, which as such is a non-technical aim (see also decision T 306/10 of 4 February 2015, reasons 5.2, according to which the selection of a song for recommendation to a user does not qualify as a technical purpose). According to the established case law of the boards of appeal, when assessing inventive step in accordance with the problem-and-solution approach an aim to be achieved in a non-technical field may legitimately be added to the problem as a constraint to be met (see decisions T 641/00, OJ EPO 2003, 352; T 154/04, OJ EPO 2008, 46).

Consequently, the Board formulates the problem to be solved as how to generate a playlist ordered according to the user's subjective preferences.

6.3 The skilled person, starting from document D4 and trying to solve the problem posed, would consider extending the automatic selection mode so as to select multiple tracks to generate the playlist and then using the feedback mechanisms for determining the user's preferences known from document D4 also to achieve the desired ordering. Hence, in a manner analogous to that for the selecting filter, the skilled person would also design the ordering filter on the basis of user control actions, thereby arriving at features (e), (f) and (g). In view of the above reasoning, the Board is not convinced by the appellant's arguments, which do not fully take into account the non-technical aspects of the differences from document D4.

6.4 The appellant argued, in particular when defending auxiliary request I, that D4 disclosed a totally different concept of playlists in its search mode (see paragraph [0153]), as the playlist did not reflect user control actions. However, as explained above, D4 already discloses, in the context of the automatic selection mode, the principle of obtaining explicit and implicit user feedback to determine the user's preferences. Thus, when starting from document D4, there can be no inventive merit in the determination of the user's preferences via feedback. Since the use of feedback reflects user control actions, there is no difference in this respect.

6.5 It follows that claim 1 of the main request lacks inventive step (Article 56 EPC).

Auxiliary request I

7. Claim 1 according to auxiliary request I differs from claim 1 of the main request in that it further specifies that choosing the selecting and ordering filters in features (b) and (e) is based upon past user playback control actions stored in a memory, in that the phrase "into an ordered subgroup (91) of media items" has been inserted into feature (g) and in that feature (h) has been replaced by the following feature:

(k) presenting the ordered subgroup of media items selected by the selecting filter for viewing and playback on the media player program.

8. Inventive step - Article 56 EPC

8.1 As already described above, the system disclosed in document D4 keeps track of short-term and long-term preferences (D4, paragraphs [0243] to [0260]), which are obtained by monitoring user feedback. Hence, the additional feature of choosing the selecting filter on the basis of past user control actions is known from document D4, while the addition that the ordering of the selected subgroup of media items results in an ordered subgroup merely specifies explicitly a feature that was already implicitly present in the main request. Hence, the conclusions concerning the obviousness of the features related to the ordering filter are applicable to claim 1 of auxiliary request I.

8.2 In the statement of grounds of appeal, the appellant argued that D4 did not disclose how the different variables representing short-term and long-term user preferences were used for selecting a track or that they were used in combination.

8.2.1 The Board does not find the appellant's argument convincing. D4 discloses that the long-term preferences are represented by the accumulatedScore and accumulatedWeight variables (D4, paragraph [0250]) and the short-term preferences by the moodBonusScore variable (D4, paragraphs [0252] and [0253]), that the score-related data of each node includes those three variables (D4, paragraph [0264]), and that the node's score and various variables are used in combination to select the next track (D4, paragraph [0319]). One possible use of these variables is further disclosed in paragraph [0320]: the nodes having scores greater than a constant threshold are counted to generate an input for the track selection (D4, paragraphs [0328] to [0330]). Contrary to the appellant's argument, the skilled person would therefore understand from these passages that, in the method of document D4, the variables representing short-term and long-term user preferences are used in combination to select a track.

8.3 Feature (k) concerns the presentation of the generated playlist for viewing and playback of the media player program. As already explained above, the use of playlists is already known from document D4 in the context of the tracks and search modes. Moreover, at the priority date, the presentation of playlists for viewing and playback was notorious. Hence, the presentation of a playlist in the automatic selection mode was an obvious extension of the system of D4.

8.4 In view of the above, claim 1 of auxiliary request I lacks inventive step (Article 56 EPC).

Auxiliary request II

9. Claim 1 of auxiliary request II adds the following features to claim 1 of auxiliary request I:

(l) presenting a selection element for providing feedback related to the playback experience to the system regarding one or more of a media item, an artist, an album, and a genre, and adding, removing, or modifying at least one of said one or more selecting filters and said one or more ordering filters based upon the feedback;

(m) the selection element including a graphic being adapted so that clicking a mouse pointer over a first portion of the graphic displays a positive selection list of feedback choices, each positively associated with the media item, and clicking the mouse pointer over a second portion of the graphic displays a negative selection list of feedback choices, each negatively associated with the media item.

10. Inventive step - Article 56 EPC

10.1 The appellant argued that D4 did not disclose the claimed use of positive and negative selection lists for providing the user's feedback. A graphical menu for providing a user with positive and negative feedback choices was neither known from nor suggested by the prior art. Moreover, this solution had a technical character since it was a means for user interaction with the computer. Users could provide negative and positive feedback more easily and with a greater degree of differentiation, but were also guided to a negative or positive feedback section at the beginning of the interaction. Hence, the use of the graphical user interface was rendered easier and more straightforward. Moreover, the graphical user interface was useful for small-screen devices. The skilled person had no motivation to put the combination of features claimed into a single system.

10.2 D4 discloses that the user interface contains elements for providing feedback on the currently played track (D4, paragraphs [0164] to [0178], in particular paragraph [0174]). For example, the feedback can be provided by means of various buttons, a touch-screen or any device that can receive a user's input. Document D4 also discloses that kinds of feedback other than like or dislike can be provided, for example buttons for emotional reactions such as happy, sad and indifferent (D4, paragraph [0174]). Moreover, D4 already discloses a feedback button that can be pressed for a time period indicative of the user's level of preference. Hence, the Board agrees with the Examining Division that D4 discloses a selection element for providing feedback on the playback experience of a media item (track). The feedback is also used to modify the selecting filter based on feedback, as it influences inter alia the score variables (D4, paragraphs [0254] to [0260]).

10.3 Consequently, the additional features (l) and (m) introduce the further difference from D4 that the user can select different feedback choices for positive and negative feedback using the mouse pointer and a graphical user interface which displays, after a click on a portion of a graphical selection element, a positive or negative selection list of feedback choices.

10.4 This further difference has the effect of providing selection lists of positive and negative explicit feedback choices for the user in a graphical user interface, when the user clicks on different portions of the graphical selection element.

10.5 However, in view of the various options for providing positive or negative feedback disclosed in D4, a skilled person would consider extending the system of D4 with a graphical user interface allowing the user to provide different kinds of positive or negative feedback. As graphical user interfaces were well known at the priority date, the skilled person would also have considered implementing such an interface on the touch-screen disclosed in D4. The claimed graphical user interface was, at the priority date, a routine implementation for the skilled person as it uses well-known elements such as pop-up menus and a mouse pointer for selection in a graphical user interface in a straightforward manner.

10.6 As to the appellant's argument that the claimed means for interaction with the computer was technical, the Board does not dispute that the solution uses technical means. However, the particular design of the graphical user interface was an obvious routine extension of the interface known from document D4.

10.7 The appellant's arguments that the use of the graphical user interface was rendered easier and the interface was useful for small-screen devices are not convincing.

That the solution may be useful for small-screen devices does not render it less obvious, as it is in fact also useful for screens of a normal size. That the interface is easy to use is a normal aim in the design of graphical user interfaces and the Board judges that the elements of the solution contribute to the ease of use only in a foreseeable manner. Hence, in the present case, the solution was a straightforward modification of the teachings of document D4.

10.8 It follows that claim 1 of auxiliary request II lacks inventive step (Article 56 EPC).

Conclusion

11. As none of the appellant's requests can form the basis for the grant of a patent, the appeal has to be dismissed.

Order

For these reasons it is decided that:

The appeal is dismissed.