The German Bundesgerichtshof (Federal Court of Justice, FCJ) has issued the decision “Bildstrom” (judgment of 26 February 2015, docket no. X ZR 37/13) dealing with the patentability of a system and a method for displaying an image stream.

The attacked patent EP 1474927 concerns a technical teaching for displaying an image stream, wherein at least two subset image streams are displayed simultaneously and the subset image streams are created from one original image stream. The original image stream may for example be recorded by a swallowable capsule and two subset image streams may e.g. show every second frame of the original image stream in original speed so that each frame is displayed for twice the time period compared to displaying the original image stream. Thereby a physician can analyze the image stream more efficiently. The patent is not limited to medical applications or certain types of image streams.

Prior to the decision of the FCJ, the Bundespatentgericht (Federal Patent Court, FPC) had nullified the patent, though affirming the technical character of the invention, due to lack of novelty and inventive step. The FCJ overruled the FPC’s reasoning regarding novelty and inventive step and made use of the opportunity to give some fundamental explanations regarding the exclusion from patentability for “presentations of information”, Art. 52 (2) lit. d EPC.

The FCJ decided that “instructions which refer to the presentation of visual content in a way that considers the physical aspects of human perception and reception of infor-mation and which aim to allow, improve or design expediently the human perception of the displayed information solve a technical problem with technical means, as long as the teaching does not focus on the provision of certain information or a certain layout”.

The FCJ states that Art. 52 (2) lit. d EPC protects the freedom of information and the freedom of opinion and serves to prevent information from being monopolized. Thus, features that refer to the provision of specific information and aim to influence the human imagination or intellect have no technical character and have to be disregarded when assessing patentability.

In the present case, the technical teaching does not refer to specific information but to the problem of enabling a user to quickly and efficiently grasping an image stream. Thus, the enhanced perceptibility of information can be regarded as a technical effect. Applicants might consider to strengthen their substantiation of such effects with psy-chological studies.

Dr. André Sabellek, B.Sc.
rospatt osten pross – Intellectual Property Rechtsanwälte

Categories: Countries, Germany, EPC, Exceptions to patentability, Patent

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