This case may be interesting for people involved in transportation and logistics business, specifically in the aviation sector. The European Patent Office considered registering (e.g. by a pilot) at an interface to receive relevant data for performing a task non-technical. Here are the practical takeaways from the decision T 2316/16 () of 12.2.2021 of Technical Board of Appeal 3.4.03:

Key takeaways

The commercial success of an invention does not allow any conclusions to be drawn about its technical character.

While non-technical features cannot contribute to inventive step, they may however legitimately form part of the problem to be solved by claimed subject-matter.

Procedural aspect: Declaring non-attendance at oral proceedings is considered as equivalent to a withdrawal of the request for oral proceedings.

The invention

The Board in charge summarized the subject-matter of the European patent application underlying the present decision as follows:

3. The invention

The invention relates to a method for selecting relevant information from a database for a user active in the transport sector. In particular, the invention finds its use in the aviation sector, more in particular, the invention relates to the selection of information which, for a pilot, where the latter is performing a task, is relevant at that moment, see the application, page 1, lines 4 to 8.

In the transport sector, in particular the aviation sector, obtaining accurate data such as weather information, vehicle information, or environmental information, is crucial for being able to correctly perform a task. This applies to, for example, “operators of the vehicle, who take a vehicle from point A to point B, as well as to the logisticians, who create plannings, as well as to maintenance personnel, who maintain vehicles”, see the application, page 1, lines 11 to 16.

According to the claimed method, transport activity related data is supplied to an interface of a predetermined user (e. g. a pilot) who is to perform a given task (e. g. a flight from A to B at a given time). The method and the system according to the invention are applicable by means of portable interfaces, such as for example those on mobile terminals, such as tablet computers, smart phones, laptops, etc., or by means of wired interfaces that are provided in the vehicle in a suitable position, such as for example a touch screen in the cockpit of an aircraft, see the application, page 2, lines 16 to 20.

The transport activity related data are stored in a database, wherein the plurality of data comprises different data types which are periodically loaded with different frequencies and which have a different validity period. Each of the data has at least four parameters attributed thereto: a first parameter contains one or more vehicle identifier means, a second parameter specifies at least one user-related qualification, a third parameter defines an area and a fourth parameter defines a time period.

After registering at the interface and identifying the vehicle (e. g. the aircraft to be used), a predetermined user (e. g. a pilot) is provided with the relevant data for performing the task (a flight from A to B at a given time). In case of a pilot, transport activity related data could relate to weather, flight planning, navigation charts, vehicle operation, vehicle load, etc.

 

Fig. 2A WO 2012/155218 A1

Here is how the invention was defined in claim 1 according to the main request:

  • Claim 1 (main request)

Is it patentable?

The first instance examining division rejected the present application due to lack of inventive step. The Board in charge arrives at the same conclusion and states that the subject-matter of claim 1 is a combination of technical and non-technical features. However, out of the plurality of features of claim 1, only three features of claim 1 would belong to the first group of technical features:

4.1 For the Board, the technical features according to claim 1 are the following:

– an interface (of a predetermined user) with means for running a program (e. g. a processor)

– a central information storage system having means for comprising a database (e. g. a memory device), means for storing a plurality of data

– a communication link for providing communication between the interface and the central information storage system.

To convince the Board in charge of the technical character of the remaining features of claim 1, the appellant filed three annexes and argued that (1) a similar case was considered technical by the German Federal Court of Justice (“Bundesgerichtshof”), that (2) a product that makes use of the claimed subject-matter is commercially successful, and that (3) that the claimed subject-matter provides a solution to minimize the risk of human errors by making sure that the user receives only the relevant and up to date information.

4.7.3 The appellant submitted Annex 1 related to the European patent EP 1 474 927 to provide evidence that, in that case, the German Bundesgerichtshof came to the conclusion that the enhanced perceptibility of information by a specific way of using an image stream and two subset image streams could be regarded as a technical effect. The appellant argued that, for the present invention as defined in claim 1, a user also could more quickly and efficiently grasp information to perform her/his task, see statement of grounds of appeal, points 4. to 7.

4.7.4 The appellant filed Annex 2 to show a commercial success of the present application and for supporting an inventive step. It cited slides 22 to 25, 14 to 21 and its client’s testimonials as evidence that the features shown in slides 14 to 25 contributed to the commercial success, see statement of grounds of appeal, points 9 to 11.

4.7.5 The appellant filed Annex 3 to show a long-felt need and cited the conclusions on pages 81 and 82. It argued that, whilst the invention did not provide a solution to completely solve the risk of human error, it minimized this risk by making sure that the user had only the relevant and up to date information. It added that the invention provided “a solution which can ensure that necessary data to be able to detect human errors or identity risks, for example for take-off performance parameters, is available on the user interface“, see statement of grounds of appeal, point 12.

However, the Board in charge did not follow the appellant’s arguments and commented on the filed annexes as follows:

Annex 1:

4.8.3 ad 4.7.3: the Board is of the opinion that the outcome of national proceedings related to European patent EP 1 474 927 are not relevant for the present case and that the determination of those features having a technical nature and those that do not contribute to any technical problem is to be made on the basis of how a skilled person understands the claim. The Board does not share the appellant’s view that the invention as defined in claim 1 necessarily provides a user (e. g. a pilot) more quickly and efficiently with the information which is needed to perform her/his task. For the Board, accumulating data, keeping it up do date and selecting a relevant subset to be supplied to a specific user is an administrative task of an aircraft operator employing pilots that are legally obliged to have specific data on board an aircraft.

Annex 2:

4.8.4 ad 4.7.4: The Board notes that Annex 2 was published in 2016 and does not see a link between the testimonials of slide 13 (for the Aviobook® EFB Platform shown from slides 14 to 25) and the invention defined by the present claims. In particular, the way of displaying information according to slides 14 to 21 and the system architecture of slides 22 to 25 are not present in the method of claim 1. Post-published Annex 2 cannot support an inventive step of claim 1. Even if Annex 2 were considered to establish the commercial success of the Aviobook® EFB Platform, it does not provide evidence that this commercial success derives from the technical features of claim 1.

Annex 3:

4.8.5 ad 4.7.5: The Board agrees that Annex 3 describes the wish to reduce the risk of human errors during the take-off phase of flight. The Board is of the opinion that the method according to claim 1 does not include technical features that necessarily reduce errors made by humans or avoid inappropriately designed or unavailable material, because the invention according to claim 1 only specifies the way the pilot obtains data, and does not improve the quality of the data itself.

For reasoning its decision, the Board focused on the specific embodiment in which a pilot is to perform a flight (indeed, claim 1 is formulated much broader):

4.3 Although claim 1 is not limited to the particular case of a pilot who is to perform a given flight with an aircraft, the Board focuses on this specific embodiment.

The Board is of the opinion that the above features relate to an administrative scheme for gathering, selecting and supplying information, which a pilot requires during a flight (manuals, handbooks for the aircraft, weather information, flight planning, navigation charts, aircraft operation, load, information about the destination airport, etc.). This administrative scheme merely corresponds to the typical steps which an aircraft operator would take (and may be legally obliged to take) to provide the pilots with the information they require during a flight.

In other words, in order to perform the administrative scheme as defined above, an aircraft operator will have to maintain an up-to-date collection of data (aircraft manuals, weather data, data about airports, etc.) organised in a way which enables data relevant for a particular flight (time, location, type of aircraft) or pilot (qualification) to be easily retrieved. In order to be provided with the relevant data, the pilot must necessarily “register” by identifying himself, the aircraft, the start and destination airports and the time of the flight. Once a pilot has “registered” himself and given the details about his flight (start and destination, type of aircraft, time of the flight, etc.), the aircraft operator would have to select the relevant data and supply the selected data to the pilot.

Against this background, the Board further argued as follows:

4.4 In view of the above identified technical features, the closest prior art is a notorious server/client system with a communicating link between server and client device.

Although the Board has no doubts that a server/client system was well known at the priority date of the present application, it wishes to point to D1, D8 and D9, which all disclose an interface (of a pilot) with means for running a program (D1: 2, 3 in figure 1; D8: 10 in figure 3; D9, 12 in figure 1), a central information storage system (D1: 5 in figure 1; D8: 38 on figure 3; D9: 14 in figure 1) having means for comprising a database and a communication link for providing communication between the interface and the central information storage system (D1: 4, figure 1, D8: figure 3; D9: figure 1).

4.5 It is established case law that non-technical features cannot contribute to inventive step, but may legitimately form part of the problem to be solved (T 641/00), for example in the form of a specification of requirements given to the skilled person to implement, see Case Law of the Boards of appeal, 9th edition, 2019, I.D.9.1.4.

Starting from the closest prior art, the objective technical problem to be solved by the skilled person, a computer engineer, is to implement the non-technical administrative schemeon the notorious server/client system.

Finally, the Board concludes that the subject-matter of claim 1 lacks an inventive step:

4.6 It is the view of the Board that it would be obvious for a skilled person having normal programming skills to arrive at the subject-matter of claim 1 …

Hence, the appeal was dismissed.

Some comments on procedural aspects

In the present case, the appellant informed the Board that he will not attend the oral hearing which was considered by the Board as a withdrawal of the request for oral proceedings:

2. Procedural issues

In preparation for the oral proceedings, the Board issued a preliminary opinion on the case, see section III. above.

The appellant’s declaration of non-attendance at the oral proceedings is considered by the Board as equivalent to a withdrawal of its request for oral proceedings (see Case Law of the Boards of Appeal of the European Patent Office, 9th Edition, 2019, III.C. 4.3.2).

Therefore, keep in mind, if non-attendance is declared, it is likely that no oral hearing will take place at all.

More information

You can read the whole decision here: T 2316/16 () of 12.2.2021

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