European software patentability: I’m Football Crazy, but Football’s Mad

European software patentability: I’m Football Crazy, but Football’s Mad

We’re taking you on a journey through the history of software patents in Europe, through the lens of pop culture. By zooming out and looking at the big picture of what the EPO has taught us over the years, we’ll be building up a clear vision on what you need to do to improve the success of your software patents at the EPO. At each step along the way through history, we’re stopping to see a case where the EPO redefined the law in a way that is still applied today.
In Parts I to VI of our journey we have learnt about many of the fundamentals of how the EPO handles software patents. But, case law also moves with the times and as we move to 2006, we look at a case that taught us about something fresh at the time as we were on the brink of the smartphone revolution. But firstly, let’s talk about something far more exciting, soccer.

Instalment VII: I’m Football Crazy, but Football’s Mad

As a European with a passion for football (for you that might be soccer, but for us it’s firmly football), 2006 meant just one thing – the World Cup, in Germany – also the heartland of European patents. What a World Cup it was too. The top teams of Germany, England, Argentina, Portugal, Italy, Brazil, and France all made it out of their groups. Whilst Beckham’s England, Ronaldo’s Brazil and Klose’s Germany fell, Italy and France made it through to set up an all European final on neutral European soil in Berlin. We all remember that final, but not for the football – that was a 1-1 draw finally won by Italy on penalties. No, we all remember the image of the football god Zinedine Zidane using pure bullish violence to head butt Italian defender Materazzi to the floor. 2006 may have been a year we were all football crazy, but it wasn’t the football we remember.
Another significant football event of 2006 also took place on German soil, and it also didn’t involve anyone kicking a football. This time it was in Munich, when the Konami decision was issued by the EPO.
Konami are the Japanese video game company that make the popular game Pro Evolution Soccer. When playing Pro Evolution Soccer and your player has the ball, the game would automatically identify the nearest player to pass the ball to. However, there are occasions in football when the nearest player is actually quite a long way away. When viewing on a small screen, this causes a problem because you can’t actually see your nearest player. Konami provided a simple solution to this, they provided an arrow on the edge of the screen indicating the direction of the nearest player to provide a visual aid as to where to kick the virtual ball.
To the amazement of many at the time, the EPO held that this GUI element of an arrow indicating your nearest team member was patentable. The case remains in the EPO’s Guidelines for Examination (G-II, 3.7) today, where the reason for this concept being patentable is briefly explained:
“As another example, in a video soccer game, the particular manner of conveying to the user the location of the nearest teammate by dynamically displaying a guide mark on the edge of the screen when the teammate is off-screen produces the technical effect of facilitating a continued human-machine interaction by resolving conflicting technical requirements: displaying an enlarged portion of an image and maintaining an overview of a zone of interest which is larger than the display area”.
The Konami case taught us something really important: GUIs that provide a continued human-machine interaction by resolving conflicting technical requirements can be patentable at the EPO.
So what else might fall within this scope of protectable GUIs? Well, the key thing is whether the GUI resolves conflicting technical requirements or ultimately overcomes some form of technical problem. Perhaps the GUI assists the user in performing a technical task like operating a vehicle, or enables a more efficient and lower bandwidth way to search through images, or acts as an improved visual aid for a surgeon to enable more precise positioning of an implant. All of these are potentially patentable GUIs.
The Konami case was not just exciting and important because it showed that GUIs can be patented at the EPO. The fact the decision was issued in 2006 was significant. In 2006 the best-selling cell phone was the Nokia 1600. In fact, of the top 10 cell phones of 2006 by number of sales, Nokia held positions 1 to 6. This alone tells you enough about the nature of cell phones back then. However, just a year later, top spot was held by a new entrant – Apple’s iPhone 3G. The world of cell phones, or smartphones as they then started to be called, has since changed forever, and the importance of GUIs has been critical for the commercial success of so many consumer electronics products. However, as we’ll see, by 2012, the world of GUI patenting was turned upside down due to the broken chain fallacy.
If you’re interested, you can read the decision here: Video game / Konami T0928/03

If you have questions about patenting software or related inventions in Europe, please contact Nick Shipp or your usual Kilburn & Strode advisor.

Preview of Instalment VIII: The loveable constant

There was one person that was an absolute constant for the youth of 2010, and so well known he is that he became known by his surname alone: Bieber, Justin Bieber. Having released his debut album in January 2010, he then sang the first line of the remake of “We Are the World” to benefit Haiti following the earthquake and through the year went on to top virtually every chart he could. In 2010, Bieber was our glimmer of hope, our unchanging symbol of youth and the future, with his trademark never-out-of-place floppy hair seen on every magazine and billboard.
Over in Europe, software patent attorneys were more excited by the imminent decision of the Enlarged Board of Appeal – G3/08, than they were of Bieber’s new album.​ Continue reading ►

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