Determining the Visibility of Content on a Web Browser by Indirect Measurement: Technical – Intellectual Property
This decision of the EPO’s Board of Appeal concerns a patent application to determine the visibility of content on a web browser. In the appeal, the board found that the determination is made by measuring the raw information about the performance of web browsers to estimate a technically significant parameter. Such an indirect measure is normally of a technical nature..
This decision is one of the examples of application of decision G 1/19, where the Grand Chamber of the EPO noted that whatever their use, the indirect measurement relates to physical reality and is of a technical nature. . Here are the practical lessons to be learned from the decision T 1422/19 (Visibility of the content article / GOOGLE) of 19.5.2021, of Technical Board of Appeal 3.5.07:
Key points to remember
Estimating the size of the browser viewport from a cross-domain iframe by indirect measurement is technical
Although the claim does not include the technical use of calculated / estimated content visibility, the method
measures “raw” information about a running web browser and processes this information to produce an estimate of a technically significant parameter, i.e. the extent to which a piece of content displayed on a web page is visible to the user, and based on technical considerationsregarding what is possible with an unmodified browser that enforces standard security constraints. Such an indirect measure is normally of a technical nature.
Finding a way around a technical problem may well be the basis of a patentable invention.
The European patent application relates to determining the visibility of content, such as advertisements, presented in a web browser.
Conventional techniques for determining visibility using code that runs from within a frame do not work due to browser security constraints. It prevents access to information such as the size of the browser viewport, the size of the content item, and the location of the content item relative to the browser viewport.
The present application proposes a method which allows the code to determine the visibility of a content element from the cross-domain iframe of the content element. This is done by calculating the overlap of the rectangle corresponding to the “web page viewing area” and the rectangle corresponding to the content item.
Here is how the invention was defined in claim 1 of the main request of EP application n ° 14768301.5:
A computer-implemented method (400) for determining the visibility of content when a piece of content is included in a cross-domain iframe (308), comprising:
determining (402) a first estimate of a size of a web page viewing area (206) of a browser window (202) associated with a browser comprising (i) reading, from within the iframe (308), an outer limit for the size of the browser window (202), (ii) performing a statistical analysis to determine an average size of one or more browser elements (204, 208a, 208b) comprising determining a browser header size (204) based on historical measurements which are gathered as statistical data, and (iii) subtracting the size of the browser window (202) from the average size the browser element (s) (204, 208a, 208b);
determining (404) a second estimate for a size of the content item to display in the web page display area (206), including reading the metrics inside the iframe for the iframe (308 ) from the browser;
determining (406) the visibility of the content item including determining a location of the content item relative to the web page viewing area (206) by reading a location of the browser window (202) and, from inside the iframe (308), a location of the iframe (308) in the screen coordinates and calculating the amount of visible content item by determining an overlap area of two rectangles, the first rectangle defined by the location of the browser window (202) and the estimate of the viewing area of the web page (206), and the second rectangle defined by the location of the iframe (308) and the size of the content item; and
reporting (408) information about the visibility of the content item to a content sponsor.
Is it patentable?
In the first place, the examining division considered that the invention aimed at ensuring the visibility of an advertisement on a web page therefore relates to a non-technical, purely commercial problem. Therefore, the problem has been defined as an alternative technical implementation of a non-technical problem. The Examining Division decided that the subject matter of the independent claims was evident from document D1.
The Board disagreed with this assessment. According to the Commission, the distinguishing feature solved a technical problem:
4.2 Document D1 does not disclose that the size of the display window / web page display area is determined by reading the size of the browser window and subtracting the size of the browser window from the size of the web page. average size of one or more browser items as determined by analysis based on historical metrics.
This distinctive feature responds to the problem estimating the size of the browser display window from a cross-domain iframe. For security reasons, the size of the viewport is not directly accessible from an inter-domain iframe (see paragraph  of the published application).
The examining division also noted that the technical use of content visibility determination is not claimed. Therefore, since the output (i.e. content visibility) is used for non-technical purposes but for advertising purposes, the solution was obvious given the non-technical requirement. The Commission applied the conclusions of G 1/19, which discussed the conditions under which indirect measurements still linked to physical reality are considered to be of a technical nature regardless of the use of the result.
4.3 In its decision, the examining division argued that, although the determination of the estimated window size was carried out with technical means, it corresponded to a technical implementation of a non-technical requirement, which was the rule used to calculate the estimated size. This rule was not technical as it was based on a business requirement, and since the output size determined was an estimated value, it circumvented the technical problem of actually measuring the viewing area rather than processing it.
4.4 It is true that the method of claim 1 does not include a technical use of the calculated / estimated content visibility. In effect, the claim specifies that information about the visibility of the content item is reported to a content sponsor. However, the method does not just calculate this information from digital input data, but measures “raw” information about a running web browser and processes this information to produce an estimate of a technically significant parameter, namely the extent to which a piece of content displayed on a web page is visible to the user, and based on technical considerations of what is possible with an unmodified browser that enforces standard security constraints. Such an indirect measure is normally of a technical nature. (cf. decision G 1/19, not yet published in OJ EPO, point 99).
The examining division had also argued that the solution using estimation was only a workaround. The Board disagreed with this assessment:
4.5 As to the Examining Division’s argument that the claim “circumvents” rather than resolves the technical problem of the effective measurement of the viewing area, the board notes that
finding a way around a technical problem may well be the basis of a patentable invention.
The argument of the examining division appears to be based on decision T 258/03, OJ EPO 2004, 575, grounds 5.7, in which the decision board argued that “[m]The steps of a method consisting of modifications of a commercial pattern and aimed at circumventing a technical problem rather than solving it by technical means cannot contribute to the technical character of the object claimed “.
However, no company or other non-technical regime is modified in this case.
Although document D5 (Window properties externalWidth and externalHeight) was not addressed in the decision of the Examining Division, the board, in its preliminary opinion, considered that it would be obvious to a person skilled in the art to of D5. However, this conclusion was reconsidered on the basis of the Applicant’s arguments:
4.6 In its communication, the board suggested that in view of document D5, which revealed that the width and height of the browser window, including browser elements such as toolbars and scrollbars, could be obtained by means of “window.outerWidth” and “window.outerHeight”, it would have been obvious to estimate the size of the browser window in terms of width and height by determining the width and height of the browser window. browser using these properties and correcting browser elements. Since the item sizes of browsers varied from browser to browser, they should be estimated, for example based on statistical data.
4.7 However, upon re-examination, the board is not convinced that, faced with the problem of obtaining the approximate size of the browser display window, one skilled in the art would, without any clue, decide to get the browser window size instead, then fix the browser items.
Since such an index is not present in document D5 or in any of the other documents of the state of the art on file, the board considers that the subject of claim 1 has not been made evident. by the state of the art cited.
The board decides that the subject matter of the independent claims involves an inventive step in relation to the cited state of the art. Therefore, the contested decision is set aside and the patent granted on the basis of the (sole) main request.
You can read the full decision here: T 1422/19 (Visibility of the content article / GOOGLE) of 19.5.2021
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.