T 816/09 – Untechnical Measurements

This is an examination appeal.

Claim 1 on file read:

1. A system for operating a virally marketed facility, comprising:a processor;a memory coupled to the processor;a user interface coupled to the processor;wherein the processor is to:

• measure virality of the facility based on a conversion rate and a propagation rate;
• determine potential options for increasing virality; and
• execute potential options for increasing virality.

The Examining Divison (ED) considered that the problem addressed was of a business nature, namely how to enhance the profit of a virally marketed business facility. The solution proposed was to measure the effectiveness of the viral marketing campaign by tracking the results (number of invitations, number of registrations) and to pursue only business options that increased the virality and profitability of the campaign. No technical problem other than the implementation of the business model on a computer system appeared from the application. The implementation did not go beyond notorious technical functions associated with any business/administrative task on a computer system. Thus the ED refused the application for lack of inventive step.

The Board came to the same conclusion:

[3] In the light of A 52(1)(2)(3), A 56 EPC 1973 requires a non-obvious technical contribution (see e.g. T 641/00 [headnote 1]; T 1784/06).

[4] The Board does not consider the problems put forward by the appellant to have a technical character.

Viral marketing utilises human social behaviour to (self-)propagate information which effectively advertises a facility (such as a website). It is a marketing person’s choice to consider high propagation and conversion rates of an advertisement as indicators of success of a marketing campaign and to call those rates the virality of the marketed facility.

It is the marketing person that seeks to increase the marketing success as judged by his/her definition of virality.

[5] The Board does not consider that any “measurement of any property is an inherently technical task” […]. It will crucially depend on what is “measured”, and whether or not the measurement involves technical means. For example, the description mentions […] that the ultimate “measure” of success is revenue, which is a financial concept. At paragraph 0047, the virality of a website is measured by evaluating public discussion, which could simply be achieved by interviews (mental acts).

[6] Thus, the technically skilled person comes into play only at the implementation level. However, counting click rates to measure the popularity or virality of a website does not require an inventive step.

This finding is implicitly acknowledged by the application which leaves technical implementation details to the skilled reader.

Trying out whether a variation of a website increases or decreases its popularity does not imply any non-obvious technical consideration, either.

[7] The virality of a website (or other facility) might conceivably be increased by providing it with innovative technical features.

However, claim 1 does not define the nature of the “options” to be executed. Hence, no technical contribution can be derived from the “options for increasing virality”. This view is confirmed by the options defined in claim 2, such as providing additional commercial aspects of the facility […].

[8] Therefore, the Board judges that the system for operating a virally marketed facility according to claim 1 and the corresponding apparatus according to claim 7 do not involve an inventive step.

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