Distinguishing between a technical feature and a representation of information

In the present case, the German Federal Court of Justice again had to deal with the question of how a representation of information within the meaning of Article 52(2)(d) EPC is to be distinguished from a technical feature.

The patent in dispute concerned a user interface for an electronic device with a screen on which a decentralised rotating menu could be displayed.

The rotating menu and its decentralised arrangement were of crucial importance for user-friendliness. Such an arrangement allows an individual to turn at least one menu item away from the display at any time. This makes it possible to add any number of menu items without having to change the format of the displayed items. This can be achieved, in particular, by keeping the number of menu items shown on the display constant, regardless of the total number of menu items available.

It was questionable whether the claimed type of display for a selection menu on a screen could be regarded as a technical feature.

This is because a representation of information as such is not eligible for patent protection (cf. Article 52(2)(d) EPC). Thus, features which are not technical must be disregarded as not being technical if they concern precisely the presentation of certain contents and therefore aim to have an effect on the human imagination. Furthermore, features according to which certain contents are emphasised by deviations in colour, brightness or the like are also not to be taken into consideration in the examination of inventive step.

Instructions which concern the (visual) representation of information, but which do not focus on the presentation of certain contents or their presentation in a particular way serve to solve a technical problem with technical means and must be taken into account when assessing inventive step. They must focus on the presentation of the image contents in a way which takes into account the qualities of human perception and reception of information and must be aimed at making the perception of the information by humans in a certain way possible, improving it or making it useful (BGH, GRUR 2015, 660 marginal no. 35 - image stream). Furthermore, a feature relating to the reproduction of information must be taken into account if and to the extent that it constitutes a means of achieving a specific technical effect (BGH, GRUR 2015, 1184 marginal 18 - unblocking picture).

In light of these principles, the senate concluded that the presentation of the menu as rotating was limited to a mere representation of information.

Stefan Bianchin