This decision concerns an application relating to insurance-risk prediction. However, the EPO refused the application as an obvious implementation of a non-technical scheme. Here are the practical takeaways from the decision T 2626/18 (Insurance risk prediction/SWISS RE) of September 28, 2022, of the Technical Board of Appeal 3.5.01.
Key takeaways
A comparison with the prior art, for example with what humans did before an invention, is not a suitable basis for establishing technical character of subject-matter excluded from patentability.
The invention
The Board in charge summarized the invention underlying the present decision as follows:
2.1 The invention concerns insurance-risk prediction and provides a model analysing potential losses of a company to be insured in order to determine the price of the company’s insurance policy (originally filed application, page 2, line 6 to page 4, line 15).
The model analyses a hypothetical scenario, in which an event causes a loss to the company (page 18, line 1 to page 19, line 9). While not explicitly disclosed, but argued by the appellant during oral proceedings, such an event could be, for example, an accident on the company’s premises. Looking at the Table on page 35 of the original application, the model contains interconnected components called liability risk drivers or LRD members. For example, there is a liability risk driver predicting possible property damage and human injuries resulting from human error (page 44). Another liability risk driver predicts the amount awarded by courts to injured persons as a result of mass litigation (page 35, line 19, to page 36, line 25). The model combines the output of the liability risk drivers and calculates the expected loss cost (page 51, line 26 to page 52, line 8). As shown in the third column of the aforementioned Table, the liability risk drivers employed by the main embodiment analyse business and legal factors only.
3. The claimed invention
The claimed invention additionally assigns to the liability risk drivers physical parameters acquired by measuring devices. The application is not specific as to what sort of physical parameters are used; it discloses merely that the measuring devices “can comprise…all kind of sensors and data capturing or data filtering devices” (page 14, lines 9 to 11). The application does not disclose any embodiment in which particular sensor measurements are processed.
Furthermore, the claimed invention comprises a loss resolving unit that resolves an unspecific loss occurring at a so-called loss unit.
The claims do not provide any technical details of the computer implementation. The application merely states that the claimed units can be implemented in software (page 15, lines 20 to 22).
Fig. 1 of EP 2 461 286 A1
-
System Claim 1 of Auxiliary Request I
Is it patentable?
In accordance with the first instance examining division, the Board considered that an appropriate starting point to arrive at the claimed invention (according to Auxiliary Request I) is a computer system connected to sensors (rather than just a computer). Then, the Board defined the distinguishing features as follows:
4.5 The claim differs from this starting point by the control unit controller, its sub-units, the loss units and the loss resolving unit.
Afterwards, the Board commented on the main point in dispute, i.e. whether the distinguishing features contribute to the solution of a technical problem, as follows:
4.6 The main point of dispute in this appeal is whether these distinguishing features define a technical solution, as argued by the appellant (see section XI., above), or non-technical matter that could be envisaged by the business person and thus be part of the requirement specification given to the technically skilled person, as considered by the examining division.
4.7 Based on the above understanding of the claimed invention, the Board concludes that the distinguishing features relate per se to an abstract insurance model for predicting future losses and resolving losses that have already occurred. The Board agrees with the examining division that this model constitutes a business method excluded from patentability under Article 52(2)(c) EPC.
Against this finding, the Appellant argued that the claimed model could be automatically executed on a computer, thereby replacing human experts in performing the risk analysis. While the Board accepts that the claimed invention predicts losses in a different way from a human expert, the Board also found that this difference cannot establish technical character:
4.9 The Board also accepts that the claimed model predicts future losses in a different way from a human expert.
However, it is established case law that a comparison with the prior art, for example with what humans did before the invention, is not a suitable basis for establishing technical character of subject-matter excluded from patentability or for distinguishing between technical and non-technical features (see T 1358/09, Reasons, point 5.4).
As a result, the Board in charge disregarded the above-mentioned distinguishing features in accordance with the COMVIK approach and thus found that the claimed subject-matter lacks inventive step. Hence, the appeal was dismissed.
More information
You can read the full decision here: T 2626/18 (Insurance risk prediction/SWISS RE) of September 28, 2022.