T 0151/21 (Module execution/THE NIELSEN COMPANY) of 25.5.2023

Summary of Facts and Submissions

I. The appellant (applicant) appealed against the decision of the examining division refusing European patent application No. 14748932.2, which was published as international application WO 2014/123819.

II. The examining division decided that the subject-matter of claims 1 and 15 of the main request and of the first and second auxiliary requests extended beyond the content of the application as filed, contrary to Article 123(2) EPC. The subject-matter of claims 1, 14 and 15 of the main request and of the first, second and third auxiliary requests lacked an inventive step.

III. With its statement of grounds of appeal, the appellant resubmitted the claims filed with the letter of 17 January 2017 as its main request and maintained the main request and the first to third auxiliary requests considered in the decision under appeal as its first to fourth auxiliary requests.

IV. In a communication accompanying the summons to oral proceedings, the board expressed the preliminary view that the main request should not be admitted into the appeal proceedings and that the first to fourth auxiliary requests did not comply with Articles 84 and 123(2) EPC.

V. With a letter dated 20 March 2023, the appellant maintained its main request and filed amended first to fourth auxiliary requests.

VI. In a subsequent letter, the appellant informed the board that it would not attend the oral proceedings. The board then cancelled the oral proceedings.

VII. The appellant requests that the decision under appeal be set aside and that a patent be granted on the basis of the claims of the main request or, in the alternative, of one of the first to fourth auxiliary requests.

VIII. The text of the main request need not be reproduced here.

IX. Independent claim 15 of the first auxiliary request reads as follows:

"A first module (206) comprising;

an identification generator (302) to generate a first module identifier after the first module (206) has been instantiated by first instructions included in a first advertisement (204) on a webpage (200);

a component loader (304) configured to load a component (208) that is included in the first instructions, the component being a module utilized by another module, the first module (206) configured to monitor presentation of the first advertisement (204) with the component (208);

a communication interface (306) to communicate a message including the first module identifier to a datastore (704) included in a message interface (320) for retrieval by the component (208), the message including a request for the component (208) to communicate with the first module (206); and

a listener (308) to:

monitor the message interface (320) to determine whether a second module (212) has communicated a second module identifier to be stored in the datastore (704) of the message interface (320) for retrieval by the component (208), the second module (212) having been instantiated by second instructions included in a second advertisement (210) on the webpage (200); and

in response to determining that the second module identifier has been communicated to the message interface (320), distribute a message instructing the component (208) to communicate with the second module (212) through the message interface (320) utilizing the second module identifier, the second module (212) to monitor presentation of the second advertisement (210) with the component (208) using second messages stored on the datastore, the second messages including:

- the second module identifier,

- requests for data, or

- data to be used by the component,

the second module identifier causing the component to retrieve the data from the message interface, wherein the webpage is presented in an environment that restricts cross-domain communication between the first module (206) and the component (208), the second module (212) and the component (208), and the first module (206) and the second module (212)."

X. Independent claim 15 of the second auxiliary request reads as follows:

"A first module (206) comprising;

an identification generator (302) to generate a first module identifier after the first module (206) has been loaded by first instructions included in a first advertisement (204) on a webpage (200);

a component loader (304) configured to load a component (208) that is included in the first instructions, the component being a module utilized by another module, the first module (206) configured to monitor presentation of the first advertisement (204) with the component (208);

a communication interface (306) to communicate a message including the first module identifier to a datastore (704) included in a message interface (320) for retrieval by the component (208), the message including a request for the component (208) to communicate with the first module (206); and

a listener (308) to:

monitor the message interface (320) to determine whether a second module (212) has communicated a second module identifier to be stored in the datastore (704) of the message interface (320) for retrieval by the component (208), the second module (212) having been loaded by second instructions included in a second advertisement (210) on the webpage (200); and

in response to determining that the second module identifier has been communicated to the message interface (320), distribute a message instructing the component (208) to communicate with the second module (212) through the message interface (320) utilizing the second module identifier, the second module (212) to monitor presentation of the second advertisement (210) with the component (208) using second messages stored on the datastore, the second messages including:

- the second module identifier, and

- requests for data,

the second module identifier causing the component to retrieve the data from the message interface."

XI. Independent claim 15 of the third auxiliary request reads as follows:

"A first module (206) comprising;

an identification generator (302) to generate a first module identifier after the first module (206) has been instantiated by first instructions included in a first advertisement (204) on a webpage (200);

a component loader (304) configured to load a component (208) that is included in the first instructions, the component being a module utilized by another module, the first module (206) configured to monitor presentation of the first advertisement (204) with the component (208);

a communication interface (306) to communicate a message including the first module identifier to a datastore (704) included in a message interface (320) for retrieval by the component (208), the message including a request for the component (208) to communicate with the first module (206); and

a listener (308) to:

monitor the message interface (320) to determine whether a second module (212) has communicated a second module identifier to be stored in the datastore (704) of with [sic] the message interface (320) for retrieval by the component (208), the second module (212) having been loaded by second instructions included in a second advertisement (210) on the webpage (200); and

in response to determining that the second module identifier has been communicated to the message interface (320), distribute a message instructing the component (208) to communicate with the second module (212) through the message interface (320) utilizing the second module identifier, the second module (212) to monitor presentation of the second advertisement (210) with the component (208) using second messages stored on the datastore, the second messages including:

- the second module identifier, and

- requests for data,

the second module identifier causing the component to retrieve the data from the message interface."

XII. Independent claim 15 of the fourth auxiliary request reads as follows:

"A first module (206) comprising;

an identification generator (302) to generate a first module identifier after the first module (206) has been loaded by first instructions included in a first advertisement (204) on a webpage (200);

a component loader (304) to load a component (208) that is included in the first instructions, the first module (206) to monitor presentation of the first advertisement (204) with the component (208);

a communication interface (306) to communicate a message including the first module identifier to a datastore (704) associated with a message interface (320) for retrieval by the component (208), the message including a request for the component (208) to communicate with the first module (206); and

a listener (308) to:

monitor the message interface (320) to determine whether a second module (212) has communicated a second module identifier to be stored in the datastore (704) of the message interface (320) for retrieval by the component (208), the second module (212) having been loaded by second instructions included in a second advertisement (210) on the webpage (200); and

in response to determining that the second module identifier has been communicated to the message interface (320), distribute a message instructing the component (208) to communicate with the second module (212) through the message interface (320) utilizing the second module identifier, the second module (212) to monitor presentation of the second advertisement (210) with the component (208) using second messages stored on the datastore, the second messages including:

- the second module identifier, and

- requests for data,

wherein the webpage is presented in an environment that restricts cross-domain communication between the first module (206) and the component (208), the second module (212) and the component (208), and the first module (206) and the second module (212)."

XIII. The appellant's arguments, where relevant to the decision, are discussed in detail below.

Reasons for the Decision

1. It is well established in the case law of the boards of appeal that the appellant's statement that it would not take part in the oral proceedings is to be understood as a withdrawal of its request for oral proceedings in the absence of any indication to the contrary (see decision T 3/90, OJ EPO 1992, 737, Reasons 1, and Case Law of the Boards of Appeal, 10th edition, 2022, III.C.4.3.2). The decision can therefore be taken without holding oral proceedings.

2. The application relates to web pages with dynamic elements and proposes a technique to allow code modules loaded in a web page to share the same instance of a component which provides common functionality.

Main request

3. Admission into the appeal proceedings

3.1 The main request corresponds to the set of claims filed with the letter of 17 January 2017. These claims were replaced with an amended set of claims filed with the letter of 23 January 2018.

3.2 Since the main request is not one of the requests on which the decision under appeal is based, it represents an amendment of the appellant's case to be admitted only at the board's discretion (Article 12(2) and 12(4), first and second sentence, RPBA 2020). However, the statement of grounds of appeal did not provide reasons for filing this request in the appeal proceedings (Article 12(4), third sentence, RPBA 2020).

Moreover, requests which have not been maintained in the first-instance proceedings are not to be admitted, unless the circumstances of the appeal case justify their admittance (Article 12(6), second sentence, RPBA 2020).

3.3 In its letter of 20 March 2023, the appellant explained that the main request returned to the last claim set which had not been objected to by the examining division as extending beyond the content of the application as filed. Since the examining division had raised an inventive-step objection against that claim set and had maintained the same line of reasoning in the decision under appeal, reverting to that claim set during the first-instance proceedings would have had no chance of success. However, since the board now tended to agree that the examining division's reasoning was not fully convincing, the appellant should be allowed to pursue the broader set of claims which had not been objected to under Article 123(2) EPC.

The appellant added that if the main request were not admitted, applicants would be obliged either to file an appeal rather than continue prosecution before the examining division or to present all the rejected claim requests in the oral proceedings. Neither solution seemed satisfactory.

3.4 The board notes that it was the appellant's deliberate decision to respond to the inventive-step objection raised against the set of claims filed on 17 January 2017 by replacing them with a set of claims of narrower scope instead of maintaining them as a main request and filing an auxiliary request. The board fails to see what would be problematic or unsatisfactory about an appellant maintaining, instead of withdrawing, a request which it considers to be allowable. The primary purpose of the appeal proceedings is to review the decision under appeal, not to give the appellant the opportunity to reconsider procedural decisions made earlier.

Hence, the board does not consider that the circumstances of the appeal case justify the admittance of the main request.

3.5 For these reasons, the main request is not admitted into the appeal proceedings (Article 12(4) and (6) RPBA 2020).

First to fourth auxiliary requests

4. Admission into the appeal proceedings

4.1 The first to fourth auxiliary requests are based on the main request and first to third auxiliary requests admitted and refused by the examining division, which were amended in response to clarity and added-matter objections raised by the board in its communication.

4.2 Since most of the objections raised by the board had not been raised earlier in the proceedings, the admission into the appeal proceedings of the first to fourth auxiliary requests is justified by exceptional circumstances (Article 13(2) RPBA 2020).

First auxiliary request

5. Added subject-matter - Article 123(2) EPC

5.1 Claim 15 of the first auxiliary request is directed to a "first module" which is "instantiated by first instructions included in a first advertisement on a webpage" and which comprises "a component loader configured to load a component that is included in the first instructions".

5.2 In its communication, the board indicated that the feature "a component loader to load a component included in the first instructions" in claim 15 of the then first auxiliary request did not appear to have a basis in the application as filed

In addition, it pointed out that the "component loader" was part of the "first module" which was "instantiated" or loaded by the "first instructions" included in the first advertisement. It was unclear how the component loaded by the component loader could be included in those "first instructions".

5.3 In its letter of 20 March 2023, the appellant reproduced paragraph [0028], in which it underlined the following sentences:

"The component loader 304 of the illustrated example loads components (e.g., module 208) to be utilized by the module 206. For example, the component loader 304 may instruct a user computer 106 to load an instance of a specific component into memory so that the module 206 can access functions provided by the component."

It argued that the component was included in the first instructions, which were also the instructions instantiating the first module. The instructions were "illustrated in Fig. 4 (paragraphs [0006], [0039]) and include with reference sign 406 the instruction to load components".

5.4 Figure 4 is a flow chart showing the operation of the first module and its component loader. There is no indication in Figure 4 and paragraphs [0006] and [0039] that the component being loaded is included in the first instructions which loaded the first module. Paragraph [0028] does not disclose this, either.

5.5 In the board's understanding of the application, the "first instructions" included in the first advertisement are merely intended to load the first module from the data collection facility 105 to which the user computer is connected via a network (see paragraphs [0014] and [0020]) and do not include any component to be loaded by the component loader of the first module. The passages cited by the appellant do not contradict this understanding.

5.6 Since the feature of claim 15 "a component loader to load a component included in the first instructions" does not have a basis in the application as filed, the first auxiliary request does not comply with Article 123(2) EPC.

6. As the first auxiliary request is not allowable for the reasons given above, there is no need to consider the other objections raised in the board's communication.

Second, third and fourth auxiliary requests

7. Added subject-matter - Article 123(2) EPC

7.1 Claim 15 of the second and third auxiliary requests also includes the feature "a component loader configured to load a component that is included in the first instructions".

Claim 15 of the fourth auxiliary request includes the feature "a component loader to load a component that is included in the first instructions".

7.2 Hence, the objection raised in point 5. above also applies to claim 15 of the second, third and fourth auxiliary requests, which consequently do not comply with Article 123(2) EPC.

8. Since none of the requests admitted into the appeal proceedings is allowable, the appeal is to be dismissed.

Order

For these reasons it is decided that:

The appeal is dismissed.