Building sustainability score: not technical

This decision concerns an European patent application relating to methods for calculating, storing, distributing and/or displaying building or structure performance data and scores. Here are the practical takeaways from the decision T 2751/18 of the Technical Board of Appeal 3.5.01.

Key takeaways

The invention

The invention concerns evaluating whether a building complies with sustainability criteria. Claim 1 concerns a system performing such evaluation. A processor-based device in a building collects data which relates to at least three of the following five categories: the use of water, the use of energy, the amount of waste produced, commuting methods used by occupants (“transportation data”) and the occupants’ experience. The data on water and energy use is obtained from meters. The other three data categories can be either provided by meters or input by the building’s occupants into digital surveys.

The device periodically uploads building performance data to a central web server (CWS). The CWS performs benchmark analyses based on corresponding data received from multiple similar buildings and determines a building’s performance score.

Figure 27(h) of EP2235621

Here is how the invention was defined in claim 1:

Is it patentable?

The Board found it convenient to analyse the more specific auxiliary request first. D2 was considered the closest prior art, and the Board found that the subject-matter of claim 1 differs from D2 in that:

A) The central building control processor is implemented as a central web server (CWS).

B) The device is connected to at least three of: a water meter, an energy meter, a waste meter or waste data inputs entered by a user, a human experience meter or human experience data inputs entered by a user, a transportation meter or transportation data inputs entered by a user, each meter being located in the predetermined building or structure.

C) The central web server performs a benchmark analysis based on the performance data of similar buildings or structures and calculates in accordance therewith a performance score of the predetermined building.

D) The device is configured to visually show the performance scores and the benchmark data on a dashboard to a building user or manager.

E) If the building performance score falls below a predetermined threshold or expected level, the system notifies a manager of the predetermined building or structure of the recommended corrective action(s) to be taken.

Here are the detailed reasoning from the Board regarding the distinguishing features:

2.1.8 The Board agrees with the decision (see points 2.2.3 to 2.2.7, 3.2.3 and 3.2.4) that the distinguishing features implement a non-technical method combining administrative steps with presentation of information (Article 52(2)(c) and (d) EPC). The Board judges that this method comprises following steps:

– A building’s performance is benchmarked based on data describing energy consumption, water consumption, the amount of waste generated, commuting methods used by the occupants and their overall experience, wherein the data is collected from the building concerned and other anonymous similar buildings.

– A performance score is calculated for the building in accordance with the benchmark data.

– The benchmark data and the building performance score are presented to a building manager on a dashboard.

– Corrective actions are recommended to the building manager when the building performance score falls below a predetermined threshold.

2.1.9 The appellant disputed this finding in the decision and argued that the above method provided a technical contribution for the following reasons.

2.1.10 Firstly, the benchmark analysis and building performance score were based on measurements carried out by meters located in the building. The meters were technical entities and obtaining data from them was a technical process.

However, the Board is not persuaded and agrees with the decision (see point 2.2.7) that collecting and analysing water and energy consumption in a building is a non-technical business operation performed as part of building management.

The Board agrees with the appellant to the extent that the use of meters to acquire data about water and energy consumption is a technical feature, but a business step does not become technical by virtue of its technical implementation (see T 1670/07 – Shopping with mobile device/NOKIA, reasons, point 9).

2.1.11 Secondly, the building was a technical system and the benchmark data and performance score indicated its internal states. This was all the more so considering that the benchmark data and the score were based on data obtained from the meters. As set out in decision T 362/90 and decisions following it, visualising internal states of a technical system had technical character. Furthermore, the indication that the building performance score fell below a predetermined threshold indicated a technical malfunction. It was comparable to an alarm indicating overheating of an engine. Providing such an alarm had technical character, even in the absence of an indication of the action to be taken by the user.

The Board does not dispute that giving visual indications about internal states of a technical system is in principle a technical effect. However, the Board disagrees that the information output by the claimed system indicates such states.

Beginning with the building performance score, the disclosed example expresses it as a natural number of arbitrarily assigned points (see point 1.4 above). Even assuming that some technical information about the building was used to obtain this score, such information is subsequently removed from the score due to its nature as a natural number.

Like the decision (see point 3.3.5), the Board cannot see that informing the user that the performance score fell below some arbitrary threshold is comparable to an indication that an engine was overheated or to the case underlying T 362/90 in which a vehicle indicated to the driver the engaged and optimal gears. The fundamental difference between those cases and the claimed invention is that while the gear in use and engine overheating are clearly technical conditions and the optimal gear is precise and credible technical guidance, the building performance score conveys no technical information.

The “benchmark data” and the “recommended corrective action(s)” do not convey technical information either. As was set out at point 3.2.4 of the contested decision, at the general level at which they are claimed and disclosed, these terms cover non-technical notifications, for example “Your building seems to perform worse than other buildings. Hire someone to improve this”.

2.1.12 Thirdly, the crucial idea of the invention was its community aspect, namely that the basis for assessing the building’s performance was a comparison with other similar buildings. In view of the complexity of a building, it would have been too limiting to claim a specific benchmarking algorithm or a specific way of calculating the performance score. Nevertheless, even at the general level claimed, the distinguishing features enabled the building manager to recognise how his building performed compared to the other buildings and to improve its performance, for instance by saving water and energy. This was a technical effect.

The Board is not convinced and notes that the system of D2 already collects data on multiple buildings and analyses it. The actual distinction is the nature of analysis performed and its input. It might well be that the appellant had good reasons for not disclosing those aspects in more detail. However, as set out above, in the absence of further details, the method, set out in point 2.1.8 above, lacks technical character.

The Board is not convinced by the argument attempting to prove that this method derives technical character from (unclaimed) actions of the building manager. In addition to being speculative, this argument is a typical example of the “broken technical chain fallacy” in the sense of T 1670/07 supra, reasons, point 11.

2.1.13 Applying the COMVIK approach (decision T 641/00 – Two identities/COMVIK), this method is provided to the technically skilled person as a requirement specification to be implemented.

2.1.14 Starting from D2 and facing the problem of implementing this requirement, it would have been obvious to connect the building controllers to water and energy meters and provide a user interface enabling the user to input waste, transport and experience data.

Furthermore, it would have been self-evident to upload the collected building performance data to the building control processor and to adapt it to calculate benchmark data and the building performance score. It would have been equally obvious to configure the building control processor to generate the indication that the building performance score fell below a predetermined threshold, to recommend unspecific corrective actions and to provide the generated information to the workstation for display.

2.1.15 Incidentally, while not claimed, the application discloses that the display might be physically located in the building (published application, [9] and [45]). Interpreted in the light of this disclosure, the claim is still obvious over the combination of the Figure 2 embodiment in D2, which serves as the starting point, and an embodiment relating to Figure 1 which uses a workstation located in the building (D2, [25]).

2.1.16 Hence, claim 1 lacks an inventive step (Article 56 EPC).

Independent claim 1 of the main request is broader than claim 1 of the auxiliary request and therefore lacks an inventive step for the same reasons. Finally, the Board refused the European patent application.

More information

You can read the whole decision here: decision T 2751/18 of the Technical Board of Appeal 3.5.01.

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