This decision is a good reminder that the European Patent Office does not grant software patents on purely financial concepts. The Board of Appeal in this case decided that an improved risk-hedging approach in credit derivative trading is non-technical. Here are the practical takeaways of the decision T 1895/13 (Reducing delta values of credit risk positions/CREDITEX) of 17.1.2019 of Technical Board of Appeal 3.5.01:
This European patent application relates to electronic trading systems such as the Creditex RealTime® platform. According to the description, traders or dealers representing large financial institutions (e.g., banks and funds) routinely use electronic trading systems to enter into credit derivative transactions involving large notional amounts.
However, while being delta neutral overall (i.e., with respect to parallel shifts in the entire credit curve of a particular reference entity), a financial institution may still be exposed to short/long credit risk positions in successive maturities on the credit curve. That is, although all the positive and negative delta values may offset one another and thus add up to almost zero, the large variance of the delta positions could be problematic to the bank holding these credit positions. In addition, the bank may be exposed to default gap risk if the delta values toggles between short and long positions too quickly in successive maturities.
Against this background, the application attempts to overcome the problems associated with current risk-hedging techniques in credit derivative trading by providing techniques for reducing delta values of credit risk positions in online trading of credit derivatives.
Here is how the invention is defined in claim 1:
Claim 1An electronic trading system of credit derivatives, the system comprising:
at least one storage device coupled to the processor;
a user interface coupled to the processor via one or more communication networks;
wherein the processor is adapted to communicate with the at least one storage device and the user interface to execute instructions to perform the following tasks: receiving, in the online trading system of credit derivatives, a plurality of credit risk positions submitted by a plurality of trader clients, each credit risk position having a delta value and a maturity date, wherein each trader client’s submission is unknown to other trader clients;
automatically identifying, from the plurality of trader clients, at least two trader clients who hold offsetting credit risk positions on at least two maturity dates;
determining delta offsets to be applied to delta values of the credit risk positions held by the at least two trader clients and having the at least two maturity dates, such that an overall delta of each of the at least two trader clients’ credit risk positions remains substantially unchanged after the application of the delta offsets;
calculating, based on the determined delta offsets, notional amounts of credit derivative trades needed to realize the delta offsets; and
executing the credit derivative trades among the at least two trader clients.
Is it technical?
Applying the established “two hurdle” approach, the board first noted that the invention as claimed was not excluded from patentability due to the presence of technical means in the claim:
The claim is directed to a mix of technical and non-technical features. The Board does not dispute that the system according to claim 1 appears in a technical context. The system involves technical means such as a processor, a user interface and a communication network and, therefore, has technical character. Accordingly, the claimed subject-matter is an invention in the sense of Article 52(1) EPC (see T 258/03 “Auction method/HITACHI“).
However, as the avid reader will already know, the second hurdle of inventive step can be overcome only based on non-obvious technical features:
However, the question of inventive step requires an assessment of whether the invention makes a technical contribution over the prior art. Features which do not make such a contribution cannot support the presence of an inventive step (see T 641/00 “Two identities/COMVIK“, Headnote I).
In the present case, most of the features of claim 1 were found to not to contribute to the technical character of the invention, namely:
The Board agrees with the contested decision at point 3.3 that the following features “per se” pertain to an administrative business related method, i.e. to the non-technical part of claim 1:
– receiving, in the online trading system of credit derivatives, a plurality of credit risk positions submitted by a plurality of trader clients, each credit risk position having a delta value and a maturity date, wherein each trader client’s submission is unknown to other trader clients;
– automatically identifying, from the plurality of trader clients, at least two trader clients who hold offsetting credit risk positions on at least two maturity dates;
– determining delta offsets to be applied to delta values of the credit risk positions held by the at least two trader clients and having the at least two maturity dates, such that an overall delta of each of the at least two trader clients’ credit risk positions remains substantially unchanged after the application of the delta offsets;
– calculating, based on the determined delta offsets, notional amounts of credit derivative trades needed to realize the delta offsets; and
– executing the credit derivative trades among the at least two trader clients.
Here is how the board argued about these features:
The contribution of the invention does not lie in a faster and more efficient information processing as argued by the appellant (see point 1 of the statement setting out the grounds of appeal). The technical infrastructure and the user interface used according to claim 1 are that of a general purpose computer which was notorious knowledge before the priority date (see for example US 2006/0036535 A1 (D1) cited in the International Search Report: figures 1, 5A, 5B, 6 and 7; para.  to ).
The contribution lies rather in the way of associating information with trade related data (namely trader, credit risk positions, maturity dates, delta offsets). Such data, however, in the Board’s view, is not technical, since it is cognitive data, not functional data (see T 1194/97 Data structure product/PHILIPS, OJ EPO 2000, 525). Storage, selection, transmission and processing of such data are merely implementations of administrative measures following a financial concept, such as would be performed by a human trader, when mitigating credit risk positions, making use of general purpose computer functions (e.g. storing and retrieving information in electronic form) without creating a further technical effect.
The present invention may provide for an improved risk-hedging approach in credit derivative trading (e.g. reducing or eliminating individual delta values, optimisation using notional amounts of original trades etc.) and therefore an improved financial concept. Those measures, however, do not appear to have any technical implication for the functioning of the data processing system and its interactive graphical user interface (GUI), since the underlying operations are carried out by a conventional networked data processing system (such as exemplified in D1, see above).
By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the “two hurdle” approach with lots of examples:
The applicant had also argued that it was a technical feature of the invention that each client’s submission is unknown to the other trader clients. However, without success:
In contrast to the appellant, the Board does not consider the feature that each client’s submission is unknown to the other trader clients to be technical since such a limitation of data flow is not achieved by technical measures, but is a constraint of the underlying administrative/financial concept.
The same applied ultimately to the aspect of automating the processing of the financial data. As the skilled reader will know, the mere automation of something is regularly considered obvious by the European Patent Office:
The fact that the steps of receiving, identifying, selecting and calculating complementary offsetting credit risk positions are performed automatically and are scalable is an obvious consequence of using a computer system with commonly known database and network technology.
Therefore, the board decided that claim 1 of the main request did not involve an inventive step.
The applicant also tried an auxiliary request which defined that the credit risk positions can be uploaded by the trader clients using a spreadsheet format:
Claim 1 of this request additionally incorporates features of dependent claims 2 and 3 of the main request by further specifying that the plurality of trader clients are invited to upload the plurality of credit risk positions to the electronic trading system of credit derivatives in a spreadsheet format.
The Board concurs with the contested decision that an unspecified data format per se does not contribute to the technical character of the claim and that organisation of data in the form of a table or a spreadsheet was commonly known in the art (see point 8 of the decision under appeal).
In addition, a trading system comprising a standardized interface that allows processing of credit derivatives in a compact and uniform format was known in the art, including the use of tables (see e.g. D1, para. ,  or ,  to  with figures 11, 14, and 15A to 15D).
The additional features therefore do not involve an inventive technical contribution.
You can read the whole decision here: T 1895/13 (Reducing delta values of credit risk positions/CREDITEX)
Bastian is a European patent attorney and a partner at BARDEHLE PAGENBERG. He specializes in software patents in Europe both from a prosecution and litigation point of view.