T 2656/18 (Touch-screen device providing touch control of web pages) of 3.12.2020

Summary of Facts and Submissions

I. The appeal is against the decision of the examining division to refuse European patent application No. 11184226.6.

II. The examining division made, inter alia, reference to the following documents:

D1|US 2008/028327 A1, 31 January 2008 |

D5|Michael Thörnlund: "Gesture Analyzing for Multi-Touch Screen Interfaces", Bachelor's Thesis, Luleå University of Technology, 17 September 2007, XP055318914, Retrieved from the Internet: http://epubl.ltu.se/1404-5494/2007/30/LTU-HIP-EX-0730-SE.pdf [retrieved on 2016-11-11]|

III. The examining division decided that the patent application, according to the main request, did not fulfill the requirements of Articles 76(1) and 123(2) EPC. The main request considered in the impugned decision is identical to the main request considered in the present decision.

Furthermore, the examining division decided that the patent application, according to an auxiliary request, was obvious in view of the teaching of document D5 when combined with document D1. The auxiliary request considered in the impugned decision is identical to the first auxiliary request considered in the present decision.

IV. In its statement setting out the grounds of appeal, the appellant (applicant) requested that a patent be granted based on the claims according to the main request, or a first auxiliary request (previous auxiliary request), or a second auxiliary request.

V. The board issued a summons to oral proceedings. In an annex to the summons, the board set out its provisional view of the case (Article 15(1) RPBA 2020).

In the summons, the board made reference to the following documents which it introduced into the procedure:

D10|Wikipedia: "Web 2.0", 3 March 2008, XP055721276, Retrieved from the Internet: URL: https://en.wikipedia.org/w/index.php?title=Web_2.0&oldid=195641121[retrieved on 2020-08-10]|

D11|Wikipedia: "Web application", 29 February 2008, XP055721274, Retrieved from the Internet: URL: https://en.wikipedia.org/w/index.php?title=Web_application&oldid=194888078[retrieved on 2020-08-10]|

The board considered that the main request did not meet the requirements of Article 76(1) EPC, in line with the decision of the examining division.

With respect to the first auxiliary request, the board considered that the subject-matter of claim 1 did not involve an inventive step in view of the teaching of document D5 when combined with document D1. Documents D10 and D11 were cited to confirm what was commonly known to the skilled person.

Regarding the second auxiliary request, the board noted that the additional feature introduced into claim 1 appeared to be known from document D5. Hence, the board considered that the amendments did not overcome the objection pursuant to Article 56 EPC raised with respect to the first auxiliary request.

VI. In a reply dated 3 November 2020, the appellant submitted a third auxiliary request and provided further arguments regarding the pending requests.

VII. Oral proceedings were held on 3 December 2020. The appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of the claims according to the main request or of the first or second auxiliary request all submitted with the statement setting out the grounds of appeal, or of the third auxiliary request submitted with the letter dated 3 November 2020.

VIII. Claim 1 of the main request reads as follows (features labelled by the board):

A method performed at an electronic device with a touch-sensitive surface, the method comprising:

(i) receiving a markup language document, the document including an embedded script; and

(ii) rendering and displaying the document at the electronic device, including:

(iii) upon detecting one or more touches on the touch-sensitive surface:

(iv) providing a current touch event, including

(v) providing a touchevent interface object that includes a plurality of touch lists,

(vi) the plurality of touch lists including a first touch list, a second touch list, and a third touch list,

(vii) wherein the first touch list includes touch data identifying all touches in a target of the current touch event,

(viii) the second touch list includes touch data identifying all changed touches in the current touch event, and

(ix) the third touch list includes touch data identifying all touches in the current touch event; and

(x) executing the embedded script in accordance with values in the plurality of touch lists.

Independent claims 4 and 6 are directed to a corresponding electronic device and corresponding computer readable storage medium, respectively.

IX. Claim 1 of the first auxiliary request reads as follows (features labelled by the board):

A method performed at an electronic device with a touch-sensitive surface, the method comprising:

(i) receiving a markup language document, the document including an embedded script; and

(ii) rendering and displaying the document at the electronic device, including:

(iii) upon detecting one or more touches on the touch-sensitive surface:

(iv) providing a touch event, including

(v) providing a touch list, wherein the touch list includes a touch identifier, at least one set of touch coordinates, and touch data to a touch event target associated with each touch; and

(vi) executing the embedded script to process values in the touch list.

X. Claim 1 of the second auxiliary request further defines, vis-à-vis claim 1 of the first auxiliary request that the touch list further includes a touch identifier, [and] at least one set of touch coordinates. Claims 4 and 6 comprise corresponding amendments.

XI. Vis-à-vis claim 1 of the first auxiliary request, claim 1 of the third auxiliary request requires two or more simultaneous touches. Claims 4 and 6 comprise corresponding amendments.

Reasons for the Decision

1. The present application concerns a touch-screen device providing touch control of web pages. The web pages are written in a markup language and include an embedded script for processing of touch events.

2. Main request

2.1 Added subject-matter (Article 76(1) EPC)

The board considers that the claims of the present main request do not meet the requirements of Article 76(1) EPC, in view of the parent application EP 09700007.9, for the following reasons:

Independent claims 1, 4, and 6 of the main request are based on the embodiment relating to the use of a so-called "touch list", see paragraph [0024]. Paragraph [0024] reads as follows (emphases added by the board):

"In some implementations, a touch list can be received that includes touch event data to identify one or more touches on the web page 100. The touch event data can include a touch identifier and at least one set of touch location coordinates. The touch list can also include touch event data to a touch event target associated with each touch. In some implementations, the one set of touch location coordinates can include client coordinates, page coordinates, and screen coordinates. In some implementations, the touch event data can identify one or more changed touches."

The board understands this passage to specify that only one touch list can be received by the web page at a certain point in time and that this touch list is supposed to include touch event data which may

(1) identify one or more touches on the web page, or

(2) a touch event target associated with each touch or

(3) one or more changed touches.

Consequently, the original parent application fails to directly and unambiguously disclose that a plurality of touch lists such as first, second and third touch lists are indeed conveyed from the interface to the web page. Moreover, the mere fact that a pseudo code (written in a so-called "interface description language") apparently relating to the programming object "interface", as illustratively depicted at page 8 of the original parent application, mentions (read-only) data attributes like "TouchList touches", "TouchList targetTouches" or "TouchList changedTouches" (which can be inserted, e.g., by a web designer or application developer in an HTML document to define event actions; see paragraph [0027] of the parent application as filed) cannot cogently demonstrate that different lists are indeed conveyed from the claimed interface to a web page at a certain time instant of device operation.

In addition, paragraph [0024] of the original parent application merely teaches that a possible touch list may identify "one or more touches" on the web page, rather than "all touches" as claimed.

2.2 The appellant argues that the subject-matter of claim 1 is supported by paragraphs [0024] and [0027] of the parent application as filed. These paragraphs had to be read together, and used to interpret each other. Notably, the pseudocode contained in paragraph [0027] would disclose the three lists, as confirmed by the statement of Prof. Klemmer. The appellant emphasizes that pseudocode would constitute a valid basis for amendments, in particular since the board would have relied on pseudocode in its analysis of document D5.

The board notes that Article 76(1) EPC mandates that the skilled person is able to unambiguously derive the claimed subject-matter from the parent application as originally filed. It is not questioned that the relevant skilled person is able to understand pseudo-code, based on the code itself as well as the inline comments. However, the appellant could not convincingly demonstrate that the pseudocode discloses that the three lists are provided together, rather than only a single list as disclosed in paragraph [0024].

2.3 In view of the above, the board decides that the main request is not allowable.

3. First auxiliary request

3.1 Novelty (Article 54(1) EPC)

The board notes that, although targeted at an academic audience, document D5 describes the development of proof-of-concept software for a touch screen interface. It describes a software library to sort the multiple finger inputs on the screen and interpret the gestures made out of them (see preface of document D5). The code excerpts and the accompanying explanations are considered to be sufficiently complete in order to allow a skilled person to transform these into working code as part of his routine activities. Consequently, it is considered that document D5 constitutes an enabling disclosure. Furthermore, it is noted that the present application discloses the invention at a level of detail which is on a par with that of document D5.

Document D5 discloses the following features of claim 1 (strike-through is used to mark undisclosed features; the references in parentheses referring to said document):

A method performed at an electronic device with a touch-sensitive surface ("touch screen", see page 2, section 1.1), the method comprising:

(i) [deleted: receiving a markup language document, the document including an embedded script]; and

(ii) rendering and displaying the document at the electronic device ("a number of objects are projected onto the screen, see page 5, line 11), including:

(iii) upon detecting one or more touches on the touch-sensitive surface ("Gesture pointer sent to the listener...", see page 11, line 10):

(iv) providing a touch event ("...will have the type of the corresponding sub class", see page 11, lines 10-11)

(v) including providing a touch list ("Point [gesture] holds a TouchData, which is simply all the data from TouchLib", see page 11, lines 12-13), wherein the touch list includes touch data to a touch event target associated with each touch ("TouchData [...] consisting of PositionX, PositionY [...] and a unique ID", see page 6, lines 9-10); and

(vi) [deleted: executing the embedded script to process values in the touch list].

Hence, the differences between the subject-matter of claim 1 and that of document D5 reside in the steps of:

(A) receiving a markup language document, the document including an embedded script;

(B) executing the embedded script to process values in the touch list.

The subject-matter of claim 1 is therefore novel.

3.2 Inventive step (Article 56 EPC)

The board asserts that distinguishing features (A) and (B) achieve the technical effect that the user is allowed to use touch input to also control web pages displayed in a browser. It is noted that a browser is a notoriously known application and commonly known to have been available on any typical computer well before the claimed priority date.

The objective technical problem may thus be formulated as how to modify what is known from document D5 to allow for controlling web pages displayed in a browser.

Document D5 teaches the implementation of gesture recognition separately from applications and mentions some types of applications to be controlled by gesture recognition, e.g., a drawing application (see D5, figure 7). Since a browser is among the notoriously known applications of a typical computer, document D5 leads the skilled person to using gesture recognition also in the context of a browser and the web pages displayed therein. At the claimed priority date (4 March 2008), using web applications as part of web pages displayed in a browser was a general trend. The concept of "web 2.0" was commonly known as proven, e.g., by documents D10 and D11. Reference is made in particular to section "Web-based applications and desktops" in document D10 and section "Interface" in document D11. Since the latter even mentions "drawing on the screen" as an example of a web application, it is considered that the skilled person would regard it as a normal design option to also support the drawing application mentioned in document D5 being implemented as a web application.

Thus when solving the objective technical problem, the skilled person would be looking for a document disclosing enhanced user interfaces for web pages. He would consider document D1, which deals with implementing user interfaces by executing a description language on a browser (see [0004]).

Document D1 discloses the distinguishing features as follows:

(A) receiving a markup language document ("XHTML", see [0084]), the document including an embedded script (see [0075] and figures 15A-C);

(B) executing the embedded script to process values in the [deleted: touch list] <ev:listener> element ("three events in (2), (3), and (4) and corresponding actions are described", see [0077] and figure 15A).

When combining the teachings of documents D5 and D1, the skilled person would recognize that the event listeners known from document D1 are similar to the touch listeners of document D5. Hence, he would consider providing the data relating to the user's touch events, i.e., the touch list, to the XHTML script in the same way as the mouse events. This way, the skilled person would arrive at the distinguishing features without employing inventive skills.

Consequently, the subject-matter of claim 1 of the first auxiliary request is not inventive.

3.3 The appellant argues that, although a browser is among the notoriously known applications, the objective technical problem formulated by the board would be focused on the claimed solution. A more objective technical problem formulation would thus be "how to broaden the applicability of gesture control to further use cases".

To the benefit of the appellant, even if the board based the argumentation on the appellant's problem, the solution would still be obvious. The skilled person would be faced with the task of identifying applications on a computer where gesture input may be applied. Since a browser was notoriously known, the skilled person would certainly have considered applying gesture input to a browser. This way, the skilled person would have been confronted with the same considerations identified above, eventually arriving at the claimed invention without employing any inventive skills.

3.4 Furthermore, with respect to the combination of documents D5 and D1, the appellant argues that the skilled person would not have consulted document D1. Starting from document D5, which concerns touch control for applications, the skilled person would lack any motivation to consult document D1, which does not deal with touch control. And even if the skilled person had looked at document D1, he would not have arrived at the claimed combination of features in an obvious manner, since this would require a too long chain of modifications from document D5.

The board notes that document D5 explicitly discloses (see the abstract) that touch screen gestures are about to replace mouse input. Thus, the skilled person would be motivated to consider documents concerned with mouse input in order to study how mouse input may be replaced by touch screen gestures. Hence, document D5 indeed hints towards consulting documents dealing with mouse input, like document D1.

3.5 In view of the above, the first auxiliary request is not allowable.

4. Second auxiliary request

4.1 The board notes that document D5 discloses the additional feature of claim 1 vis-à-vis claim 1 of the first auxiliary request as follows: "'TouchData' [is] an object consisting of PositionX, PositionY, DeltaX, DeltaY, Area, DeltaArea and a unique ID", see sect. 1.1.5 in document D5. Consequently, the board asserts that the differences between the subject-matter of claim 1 and that of document D5 reside in the same features as identified with respect to claim 1 of the first auxiliary request.

Therefore, the subject-matter of claim 1 of the second auxiliary request is not inventive for the same reasons as claim 1 of the first auxiliary request.

4.2 In his arguments in favor of an inventive step, the appellant refers to the arguments provided with respect to claim 1 of the first auxiliary request.

The board notes that these arguments are not convincing for the reasons provided above, as these reasons are not affected by the amended feature introduced into claim 1 of the present request.

4.3 In view of the above, the second auxiliary request is not allowable.

5. Third auxiliary request

5.1 Admissibility

The appellant argues that the third auxiliary request should be admitted into the proceedings, as it was filed in reaction to the board's new interpretation of the content of document D5 provided in the summons. As basis for the amendments the appellant refers to paragraphs [0024] and [0027] of the application as originally filed.

The board decides that the third auxiliary request is admitted into the procedure, since it constitutes a fair reaction to the new analysis of document D5 provided in the board's summons. Furthermore, basis in the application as originally filed (and the parent application) is beyond doubt.

5.2 Inventive step (Article 56 EPC)

The appellant points out that the "point" gesture cited in the board's analysis of document D5 relates to touches by a single finger only. "Every finger pressed onto the screen will initially compose a gesture of this type" (see page 11, lines 15-16) would imply that a separate "point" gesture would be composed for every finger. Since only a single "point" gesture pointer is provided (see page 11, lines 10-12), document D5 would only disclose providing the touch data for a single finger, even in the case of simultaneous touches. Consequently, the amended feature would be an additional distinguishing feature. The associated objective technical problem could be formulated as "how to handle a broader spectrum of touch gestures". Since the skilled person would not consider mouse-based document D1 for solving this problem, the claimed solution would not be obvious.

Contrary to the appellant's view, the board asserts that document D5 also discloses that the "point" gesture provides data on multiple simultaneous touches to the application. Document D5 discloses that the "point" gesture "is all the data from TouchLib forwarded in one big package", see page 11, line 13. Figure 8 shows that "TouchLib" references the "GestureAnalyzer", which comprises the method "#Analyze(data1: TouchData, data2: TouchData)", see line 14 of "GestureAnalyzer". It is disclosed on page 10, line 7, that "Analyze (TouchData, TouchData) [is] for the analysis of multiple fingers". Hence, the amended feature does not constitute an additional difference as argued by the appellant. The subject-matter of claim 1 of the third auxiliary request is thus not inventive having regard to documents D5 and D1 for the same reasons as provided with respect to claim 1 of the first auxiliary request.

5.3 In view of the above, the third auxiliary request is not allowable.

6. Thus, the appeal is not allowable.

Order

For these reasons it is decided that:

The appeal is dismissed.