This is an examination appeal against the refusal of EP 2 976 719 “ESTIMATING VISIBILITY OF CONTENT ITEMS” by Google.

I find this decision very interesting because it is one of the first to build upon G1/19. Specifically, it deals with the question which interactions are technical on the input side of a software invention. The concrete question was whether an indirect measurement is technical or not.

As an aside, the decision also clarifies whether finding a way to circumvent a technical problem can form the basis for a patentable invention.

Is my advertisement visible in the browser window?

As mentioned in the patent application, in the online advertising business it is useful to know whether embedded content items, e.g., advertisements, are visible to the user.

The invention therefore relates to determining “visibility of content” presented in a web browser.

Measuring the visibility of a content item sometimes does not work, namely when the code that renders the content item runs from within an iframe whose domain is distinct from the domain of the web page embedding the content item. This is because browser security constraints typically prevent access to the necessary information (the size of the browser’s viewport, the size of the content item, and the content’s item location relative to the browser’s viewport).

The application sets out to solve the problem of allowing code to determine the visibility of a content item from within the content item’s cross-domain iframe.

Indirect measurement of the browser viewport from within an iframe

The solution proposed by the invention essentially boils down to determining the visibility of the content by calculating the overlap of the rectangle corresponding to the “webpage viewing area” and the rectangle corresponding to the content item:

Fig. 3 of EP 2 976 719

Claim 1 defines a specific way for calculating the two rectangles:

  • The “web page viewing area” rectangle is estimated by reading the size and location of the browser window from inside the iframe, i.e. by code included in the iframe, and correcting for browser UI elements which are part of the browser window but not part of the web page viewing area (like the browser header and scroll bar in Fig. 3). The sizes of the browser UI elements are estimated on the basis of statistical data obtained from historical measurements.
  • The “content item” rectangle is determined by reading the location and size of the content item from inside the iframe. The position can be determined with browser-specific APIs or through mouse events. The size can be approximated as the size of the “inside portion” of the iframe.

COMVIK approach to the rescue

In its inventive-step analysis, the board did a state-of-the art application of the problem-solution approach:

The closest prior art was document D1, which relates to determining whether a predefined percentage of an advertisement is within the browser’s viewport. The board saw the following difference to the invention:

Document D1 does not disclose that the size of the viewport/web page viewing area is determined by reading the size of the browser window and subtracting from the size of the browser window the average size of one or more browser elements as determined by a statistical analysis based on historical measurements.

This distinguishing feature addresses the problem of estimating the size of the browser’s viewport from within a cross-domain iframe. Due to security constraints, the size of the viewport cannot be accessed directly from within a cross-domain iframe

T 1422/19, reasons no. 4.2

In the European approach, the next question is then whether the distinguishing features make a technical contribution, because only the technically relevant features can ultimately be the basis for an inventive step.

This is called the COMVIK approach, which I have explained in some more detail in this article.

Circumventing a technical problem instead of solving it?

In the case at hand, the first-instance examining division had argued that the determined output size was only an estimation. Therefore, it circumvents the technical problem of actually measuring the viewing area rather than addressing it.

According to the examining division, earlier case law stated that such a circumvention of a technical problem could not be the basis for inventive step.

But the board saw it differently:

As for the examining division’s argument that the claim “circumvents” rather than addresses the technical problem of actually measuring the viewing area, the board notes that finding a way to circumvent a technical problem may well form the basis for a patentable invention.

The examining division’s argument appears to be based on decision T 258/03, OJ EPO 2004, 575, Reasons 5.7, where the deciding board argued that “[m]ethod steps consisting of modifications to a business scheme and aimed at circumventing a technical problem rather than solving it by technical means cannot contribute to the technical character of the subject-matter claimed”.

However, no business or other non-technical scheme is modified in the present case.

T 1422/19, reasons no. 4.5

But the output is not used in a technical way?

The other argument of the examining division was as follows:

  • Although the determination of the estimated size of the viewport is performed with technical means, it corresponds to a technical implementation of a non-technical requirement, which is the rule used to compute the estimated size
  • This rule is non-technical because it is based on a business requirement

Here, the board made some interesting statements about the necessity to state a technical use of a calculated output in the claims.

As far as I can see, this is one of the first decisions that cites G1/19:

Indirect measurements are normally of a technical nature

Here’s what the board said:

It is true that the method of claim 1 does not include a technical use of the calculated/estimated content visibility. In fact, the claim specifies that the information about the visibility of the content item is reported to a content sponsor. However, the method does not merely calculate this information from numerical input data but measures “raw” information about a running web browser and processes this information to produce an estimate of a technically meaningful parameter, namely the extent to which a content item displayed within a web page is visible to the user, and on the basis of technical considerations relating to what is possible with an unmodified browser that enforces standard security constraints. Such an indirect measurement is normally of a technical nature (see decision G 1/19, not yet published in the OJ EPO, point 99).

T 1422/19, reasons no 4.4

For context, this is the relevant snippet from G1/19:

The calculation of the physical state of an object (e.g. its temperature) is typically part of a measurement method. It is generally acknowledged that measurements have technical character since they are based on an interaction with physical reality at the outset of the measurement method. Measurements are often carried out using indirect measurements, for example, the measurement of a specific physical entity at a specific location by means of measurements of another physical entity and/or measurements at another location (see e.g. T 91/10, Reasons, point 5.2.1; T 1148/00, Reasons, point 9). Even though such indirect measurements may involve significant computing efforts, they are still related to physical reality and thus of a technical nature, regardless of what use is made of the results (for a combination of measurements and simulations see e.g. T 438/14).

G 1/19, reasons no. 99

Was it obvious?

For the final obviousness assessment, the basic question was whether, faced with the problem of obtaining the approximate size of the browser’s viewport, the skilled person would, without any hint, decide to obtain instead the size of the browser window and then correct for browser elements.

The board saw no hint to do so in the available prior art. Therefore, the board considered that claim 1 was not rendered obvious by the cited prior art.

In the end, the appeal was set aside and the case was remitted to the department of first instance with the order to grant a patent.

You can read the whole decision here: T 1422/19 (Content item visibility/GOOGLE) of 19.5.2021

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