T 2760/18 (Enhanced scrollbar/BLACKBERRY) of 26.1.2023

Summary of Facts and Submissions

I. The appeal is against the examining division's decision to refuse the European patent application No. 12175430.3 for added subject-matter (Article 123(2) EPC), lack of clarity (Article 84 EPC), and lack of inventive step (Article 56 EPC).

II. The appealed decision cited inter alia the following documents:

D1: CHIMERA, R.: "Value Bars: An Information Visualization and Navigation Tool for Multi-attribute Listings", Proceedings of the SIGCHI Conference on Human Factors in Computing Systems, 1992, pages 293 - 294;

D2: MASUI, T.: "LensBar - Visualization for Browsing and Filtering Large Lists of Data", Proceedings IEEE Symposium on Information Visualization, 1998, pages 113-120.

As regards inventive step, the examining division held that the differences over D1 were either obvious alternatives or non-technical features related to the GUI's visual/graphical design.

III. In the statement setting out the grounds of appeal, the appellant requested that the decision to refuse the application be set aside and a patent be granted on the basis of a main or one of seven auxiliary requests, all filed with the statement setting out the grounds of appeal. The main and the first to third auxiliary requests were identical to the refused requests, the fourth to seventh auxiliary requests were new. Oral proceedings were requested on an auxiliary basis.

IV. In the communication accompanying the summons to oral proceedings, the Board tended to agree with some of the examining division's clarity and added matter objections and identified further clarity issues in claim 1 of all requests. The Board agreed with the appellant that D1 did not disclose an element that could be moved and preferred to start the inventive step assessment from D2, which related to an enhanced scrollbar. It set out its preliminary opinion that none of the appellant's requests involved an inventive step over D2.

V. In a reply, the appellant filed new fourth to sixth auxiliary requests replacing the previous fourth to seventh auxiliary requests. It also filed arguments in favour of the admissibility and allowability of these requests.

VI. In a brief communication, the Board informed the appellant that it maintained its preliminary view for the main and first to third auxiliary requests. The Board tended to admit the new auxiliary requests, but did not consider them to involve an inventive step (Article 56 EPC).

VII. At the oral proceedings, held by videoconference on 26 January 2023, the appellant confirmed the requests submitted in writing.

VIII. Claim 1 of the main request reads (with the Board's numbering of the features):

A method on a portable electronic device (100), the portable electronic device (100) including a touch-sensitive display (1218) for presenting a graphical user interface (1248), the method comprising:

[1] displaying (902, 1102) content items (116, 117, 118) each having an associated common property (116a, 117a, 118a) in the graphical user interface (1248) on the display (1218), the content items being displayed in a graphical representation of the content items, icon or representative graphic, or by providing the content item itself;

[2] displaying (904, 1104) the associated common properties (116a, 117a, 118a) by presentation of a navigation list with a navigation element (170) in association with the displayed content items (116, 117, 118), the navigation element for identifying a position of the displayed content items (116, 117, 118) relative to the associated common property by which the content items (116, 117, 118) are ordered for display within the graphical user interface (1248), wherein movement of the navigation element through the navigation list is tied to the movement of the content items visible within the display;

[3] determining (1106) a measure of the common property associated with the displayed content items (116,117,118); and

[4] modifying (1108) a display element of the navigation element (170) corresponding at least in part to a distribution of the measure of the common property (116a, 117a, 118a) associated with the displayed content items (116, 117, 118) the display element of the navigation element (170) changing as the measure of the common property changes based upon positions of each of the content items displayed within the graphical user interface (1110).

IX. Claim 1 of the first auxiliary request adds to the end of feature [2] "whereby the content item list may be navigated by (i) a swipe gesture of the content items, the graphical representation of the content items, icons or representative graphics, or (ii) by movement of the navigation element along the navigation list".

X. Claim 1 of the second auxiliary request adds before "the display element of the navigation element (170) changing" in feature [4] of the first auxiliary request "the measure being defined by a distance there between" and adds to the end of feature [4] "wherein the display element comprises the length of the navigation element (170) and the modifying comprises proportionally increasing or decreasing the length of the navigation element relative to the axis of the navigation list".

XI. Claim 1 of the third auxiliary request replaces "displaying content items" in feature [1] of the second auxiliary request with "displaying a first subset of a plurality of content items" and adds at the end of the claim the following additional features:

[5] wherein when the subset of displayed content items changes to a second subset, a second common properties [sic] associated with the displayed content items within the navigation list is determined relative to the displayed second subset of content items (1010);

[6] wherein the navigation element (170) is then modified relative to a determined second measure between the second common properties of the second subset of content items so as to have a colour corresponding at least in part to a distribution of the second measure.

XII. Claim 1 of the fourth auxiliary request adds to the end of feature [1] of the third auxiliary request "image or text" and replaces in feature [2] "relative to the associated common property" with "relative to the displayed associated common property". It also modifies features [3] to [6] as follows (additions over the third auxiliary request underlined, deletions struck-through):

[3] determining (1106) a measure of the common property associated with the displayed content items (116,117,118), the measure being defined by a distance between the associated common properties of the first and last content items of the displayed first subset of content items;

[4] modifying (1108) a display element of the navigation element ([deleted: 170]590) corresponding at least in part to a distribution of the measure of the common property (116a, 117a, 118a) associated with the displayed content items (116, 117,118), [deleted: the measure being defined by a distance there between,] the display element of the navigation element ([deleted: 170]590) changing as the measure of the common property changes based upon positions of each of the content items displayed within the graphical user interface (1110), wherein the display element comprises the [deleted: length] width of the navigation element ([deleted: 170]590) and the modifying comprises proportionally increasing or decreasing the [deleted: length] width of the navigation element relative to the axis of the navigation list based on the distribution of the measure of the common property; [deleted: and]

[5] [deleted: wherein ]when the subset of displayed content items changes to a second subset, determining a second common [deleted: properties] property [deleted: associated with] for each of the displayed content items of the second subset within the navigation list [deleted: is determined] relative to the displayed second subset of content items (1010); and in response to the determination of the second subset,

[6] [deleted: wherein] modifying the width of the navigation element ([deleted: 170]590) [deleted: is then modified] relative to a determined second measure between the second common properties of the second subset of content items [deleted: so as to have a colour corresponding at least in part to] based on a distribution of the determined second measure.

XIII. Claim 1 of the fifth auxiliary request adds to the end of feature [3] of the fourth auxiliary request "wherein the first and last content items of the displayed first subset are defined by the graphical representation of the content items".

XIV. Claim 1 of the sixth auxiliary request adds the following feature at the end of claim 1 of the fifth auxiliary request:

[7] wherein the first and second common properties are defined as a time associated with each content item, and wherein the navigation element (590) identifying a position of the displayed content items along a timeline of all the content items.

Reasons for the Decision

1. The invention

1.1 The invention relates to a graphical user interface (GUI) for navigating through a sorted, e.g. by time, list of content items, such as images or calendar entries (paragraphs [0001], [0002] of the published application).

1.2 The claimed invention specifies the elements of the GUI with a number of general terms. Essentially, however, taking time as the sorting (common) property and looking at Figure 1 it boils down to displaying a subset of content items 116, 117, and 118 and a scrollbar device consisting of a timeline ("navigation list" 160) of the time values of all the content items ("associated common properties", 111a to 120a) and a movable "navigation element" 170 which spans the times of the currently displayed content items ("measure of the common property") on the timeline [0012].

Thus, in addition to a scrolling function, the navigation element also gives a sense of scale of the time spanned by the displayed content items relative to the total time spanned by all the items [0013].

2. Fourth to sixth auxiliary requests - admittance

The appellant justified the amendments in the light of the new clarity objections raised in the Board's communication and the use of D2 as the starting point for inventive step. The Board judges that these are cogent reasons that justify the filing of the fourth to sixth auxiliary requests and admits these requests into the proceedings (Article 13(2) RPBA).

3. Sixth auxiliary request - inventive step

3.1 The Board finds it convenient to start with the sixth auxiliary request because it defines the most concrete version of the invention.

3.2 The Board observed that the reference to a "distribution" of the measure of the common property in features [4] and [6] of claim 1 was confusing. A distribution necessarily required multiple values, whereas the measure, as defined in feature [3], had a single value (i.e. the distance between the properties of the first and last displayed items). It appeared rather that the measure itself reflected the distribution of the property values of the displayed items (in the sense of the range of the common property covered by the displayed items - compare Figures 7 and 8 and [0017] and [0018] of the application). The Board thus interpreted the "distribution of the measure" in claim 1 simply as "the measure".

The Board also observed that features [5] and [6] appeared to be redundant as they only re-phrased the content of feature [4], which already specified that the width of the navigation element varied with the subset of displayed items.

The appellant did not object to the Board's interpretation. The Board therefore maintains its view.

3.3 D2 concerns a GUI for navigating through a large list of sorted items using a scrollbar.

In the GUI of D2, the scrollbar can be placed next to a scrolling window displaying a subset of items from a filtered list. For instance, Figure 6 of D2 shows an alphabetically ordered list of words from a dictionary comprising the pattern "_q" and Figure 12 shows a chronologically ordered list of file names comprising the pattern "uist". These correspond to the "plurality of content items" in feature [1]. Ordering the items chronologically suggests that the associated "common property" can be time as in feature [7].

The positions of the items in the filtered list are highlighted in the background of the scrollbar to show the locations of entries that match the pattern. The user can navigate through the filtered list by moving the scrollbar's knob, corresponding to the "navigation element" in feature [2], along the background, corresponding to the "navigation list", or by clicking the mouse on the scroll window and dragging it vertically. The items shown in the scrollable area correspond to the position of the knob (D2, first page, last full paragraph; second page, right-hand column, fourth paragraph).

3.4 Claim 1 essentially differs in that:

(i) the width of the navigation element varies and is defined by the distance between the properties of the first and last item in the displayed subset of items (features [3] and [4]).

(ii) the method runs on a portable electronic device with a touch-sensitive display (preamble).

3.5 The appellant argued that the "associated common properties" of the content items in the invention were absolute properties inherent to the content items, whereas the alphabetic ranks of words in D2 were relative to the chosen dictionary. Moreover, the properties of the items in claim 1 were unevenly distributed, whereas the alphabetic ranks defined a constant distribution.

3.6 The Board is not convinced because claim 1 only limits the common property to time, which is known from D2. Moreover, time alone does not necessarily imply absolute or unevenly distributed property values. It may, for instance, designate the relative times of images taken at regular time intervals.

3.7 The Board considers that feature (i) relates to the presentation of information, as it merely informs the user about a property of the currently displayed items (i.e. their span). Features directed to the presentation of information may contribute to the technical character of the invention if they credibly assist the user in performing a technical task (T 336/14 - Presentation of operating instructions/GAMBRO, headnote; T 1802/13 - Brain stimulation/CLEVELAND, point 2.1.5). In the Board's view, however, the claimed GUI does not prompt or otherwise incite the user to use the displayed information in a particular way. Instead, it is entirely up to the user to make sense of the displayed information and to decide what to do with it.

3.8 The appellant argued that changing the width of the navigation element provided a better sense of the range spanned by the displayed items. This improved the user's navigation through the content items, i.e. assisted the user to find an item of interest while reducing the number of necessary user interactions. This, in turn, reduced the usage of the device's computing resources and extended its battery life.

3.9 The Board agrees that an improved navigation and a reduced usage of computing resources are technical effects, but is not convinced that these effects are credibly achieved. The width of the navigation element might indeed give the user a better sense of the range spanned by the displayed items. But this range provides no information about the property values of the individual items (whether displayed or not). Hence, when the user looks for an item with a particular property value, the width provides no guidance about the position of this item within the list of content items.

3.10 The appellant argued that the invention improved navigation of items with unevenly distributed properties, such as chronologically sorted items separated by irregular time intervals. The width of the navigation element reflected the density of the displayed items. A larger width indicated that the displayed items were sparsely distributed and that the user could quickly navigate through the items by dragging the navigation element along the navigation list. A smaller width indicated that the displayed items were densely distributed and that there was a higher risk of overlooking an item due to a high scrolling speed. A smaller width thus suggested to the user to change to the slower navigation mode of swiping through the displayed items.

3.11 The Board agrees that the user could navigate through the list of items in this way, but the advantage is not derivable from the application as filed. Moreover, the Board does not consider that this would be self-evident when using the interface. Hence, the Board cannot see why adapting the width of the navigation element as in feature (i), would motivate the user to navigate any differently than with the GUI of D2.

3.12 Finally, the appellant argued that it was not necessary to describe in the application how a user should use the claimed GUI for navigation as this was intuitive. If a user was given a ladder, he would know how to use it even without instructions.

The Board does not find this argument convincing because intuition is subjective. It depends on personal factors, such as experience, preferences and cognitive abilities (see e.g. T 0407/11 - Objektorientierte Benutzeroberfläche/SIEMENS, point 2.1.4). A credibly achieved technical effect, however, requires an objective and reliable link between the feature and the effect. Since the effect of improved navigation depends on the user's intuition, i.e. on the user's subjective evaluation, it is not credibly achieved.

The appellant's comparison with a ladder is not persuasive because different things may require different degrees of intuition to use. Just because someone might find using a ladder intuitive, does not mean they will find using the claimed GUI equally intuitive. This comparison is also tainted by hindsight since, unlike the claimed GUI, a ladder is a well-known item with established use. What might seem intuitive today is actually our knowledge of how ladders work.

3.13 Since feature (i) does not credibly assist the user in performing a technical task, it lacks technical character and cannot contribute to inventive step.

3.14 As regards feature (ii), the Board agrees with the examining division that it defines an obvious choice of an alternative computing environment. In the Board's view, the idea of implementing a GUI with a scrollbar on a portable device with a touch screen is not based on any technical considerations, but merely follows the general trend in technology at the priority date of the application (2012).

The Board, moreover, cannot see any obstacles the skilled person would face when implementing the GUI of D2 (with the additional requirement given by feature (i)) on a portable device with a touch screen display. The only adaptation that would have to be carried out is to translate the mouse operations to their corresponding touch screen equivalents. The Board judges this to be obvious.

3.15 Hence, claim 1 of the sixth auxiliary request does not involve an inventive step (Article 56 EPC).

4. Fourth and fifth auxiliary requests - inventive step

Claim 1 of these requests is broader in scope than claim 1 of the sixth auxiliary request. Therefore, it does not involve an inventive step (Article 56 EPC) for the same reasons.

5. Main, first and second auxiliary requests - inventive step

5.1 Claim 1 of the sixth auxiliary request essentially contains all features of claim 1 of the main request, and the first and second auxiliary requests. Any different wordings in the sixth auxiliary request only aim at overcoming the objections with regard to Articles 123(2) and 84 EPC raised by the Board in the communication accompanying the summons to oral proceedings.

5.2 Accordingly, claim 1 of the main request, and the first and second auxiliary requests does not involve an inventive step (Article 56 EPC) for the same reasons as given above for claim 1 of the sixth auxiliary request.

6. Third auxiliary request - added subject-matter

6.1 According to steps [5] and [6] of the third auxiliary request, when the subset of displayed content items changes from a first to a second subset, the colour of the navigation element is set to correspond to the distribution of a second measure of second common properties.

6.2 The Board agrees with the examining division that the original application does not disclose an embodiment where for a first subset of displayed items, only the length of the navigation element is changed according to a first measure of a first common property (e.g. time) and for a second subset of displayed content items, only the colour of the navigation element is changed according to a second measure of a second common property (e.g. size).

6.3 Accordingly, claim 1 of the third auxiliary request extends beyond the scope of the application as filed (Article 123(2) EPC).

7. Since none of the requests on file is allowable, the appeal must be dismissed.

Order

For these reasons it is decided that:

The appeal is dismissed.