Cabinet Beau de Loménie
Allowing validation of a purchase on the internet with one single click from online shopping consists in applying the already known cookies mechanism, for memorizing banking data in particular, to buying on line with a virtual shopping basket, such buying mechanisms being already equally well known.
This was determined by the Board of Appeal of the EPO in the decision T 1244/07 published on 30 June 2011 in a conventional reasoning in which is to be noted that the combination of known means if it does not provide «further technical effect» is not patentable for lack of inventive step.
According to the Board, the existence of a virtual shopping basket, the fact of not capturing banking details at each purchase in order to increase the security of transactions and the utilization of cookies for storing the details of a user on a server are not new and their combination not patentable, in the absence of this technical effect. Thus, avoiding the use of an intermediate page for the purchaser confirming a purchase has no technical effect since this requirement during a purchase is a choice uniquely commercial.
It is interesting to note that the « one click » invention is not rejected on the grounds that it would be a business method but for lack of inventive step. The fact that the invention was filed a short time after the cookies were known of has been a determining factor in the rejection and the decision might have been different if this had not been the case. Finally, it is important to note that the case law of the EPO stays constant and that the non-technical characteristics are not taken into account in assessing inventive step.
To assure the consumer, the benefits of the invention are: limit the number of operations for the buyer and avoid bank details being transmitted at each transaction on the network at risk of being intercepted.
Brief: In the Case C-324/09 – L’Oreal/eBay – the CJUE decided that the Member States should be able to require operators or platforms of selling on line to take measures which contribute, not only to put an end to infringements of intellectual property rights but also to prevent further attacks of this nature.