A patent application by Swiss Re to improve weather forecasting was rejected by the EPO: The modelling of weather data is not a patentable invention; improved understanding of weather is rather a scientific theory.
Patentability of calculation models, ML and computer-implemented invention
In principle, modelling and simulation can be protected by patent, but patentability for calculation models and algorithms is not easy, the same applies to machine learning (ML). This is because mathematical methods are in principle excluded from patentability under Article 52 EPC unless they have a technical character and produce a technical effect. However, a general technical purpose such as “controlling a technical system” is not sufficient.
Patentability as a computer-implemented invention is easier to achieve, especially in the case of computer-aided simulation methods. Concrete technical applications of computer-implemented simulation methods are to be regarded as inventions within the meaning of Article 52 EPC even if they comprise mathematical formulae, the EPO’s Board of Appeal already decided in 2006 (T 1227/05).
Improving weather forecasting: technical or not?
But Swiss Re’s patent application for improving weather forecasting was rejected by the European Patent Office (EPO) as non-technical. Swiss Re filed an appeal against it, arguing that a weather forecasting system comprising, for example, sensors for measuring specific weather data is technical in nature and that improving weather data by calculation and further processing is also technical in nature.
Although the EPO Board of Appeal agreed with the applicant Swiss Re that a weather forecasting system could be technical, it did not agree with the applicant’s argument that a weather forecasting system could be technical. Weather data represent measurements about the physical world and can therefore also be of a technical nature, the Board of Appeal explained.
Reference to Decision T 2079/10
In this context, the Board of Appeal also referred to Decision T 2079/10 (Control of cellular alarm systems) of 2018 (incidentally, with Swiss Re as applicant), in which it was assumed that physical parameters constitute technical data.
In this case of alarm systems, the Board of Appeal had held that a grid-based structure requiring spatial or geographical allocations and considerations between sensors and alarm systems could in no way be regarded as a specification of a purely business process. Since the recording of physical measurements by means of sensors was also claimed, the procedure as a whole had a technical character.
Improved understanding of weather is scientific theory
The key question in the present case, however, is whether improving the accuracy of certain weather forecast data is technical. The Board of Appeal denied this and considered this kind of modelling to be more of a discovery or a scientific theory, which are excluded from patentability under Article 52(2)(a) EPC. This is because “weather” is not a technical system which can be improved or even simulated in order to try to improve it.
The improvement of the data in this case is therefore rather an improvement of a model applying a scientific theory and does not therefore contribute to its technical character, the Board of Appeal decided. The modelling of the weather in the form of historical reference data is intended to improve understanding of the weather and, as a result, to improve weather forecasting.
Objective technical problem – but for business purposes
The objective technical problem is how to implement the non-technical method for predicting the value of weather-based financial products on a computer system, the Board of Appeal summarised. It was also legitimate to include the non-technical aspects and features of the invention in the formulation of the technical problem. However, the technical features of the implementation result directly from the requirement specification for the non-technical concept.
In particular, it does not seek a technical effect or purpose such as an improvement in the measurement technology itself, but rather an improvement in the processing of data for business purposes, namely determining the value of the financial product.
Therefore, the present improvement of weather forecasting is not technical, the Board of Appeal decided.
Mutual technical effect
Swiss Re also argued that the invention automatically links structured financial products with weather-based measurement data, thus creating a mutual technical effect.
The Board of Appeal agreed with this in part. In fact, a technical interaction between the financial products and the “real world” was achieved, the Board of Appeal decided. Contrary to the opinion of the examining division, the method according to the patent claim included technical steps, for example the generation of a reference value based on the structural parameters of the financial product. Such steps are technical because without a processor-based system a skilled person would not be able to perform them in the defined order.
However, there is no influence of the parameters of the financial product on the quality of the weather or weather-based measurements. By definition, the value of the financial product depends on the weather data, but not vice versa. There is therefore no technical reciprocity effect.
No inventive step under Article 56 EPC
Swiss Re’s appeal was rejected in its entirety (T 1798/13). The invention Improvement of weather forecasting is not patentable because it is not based on an inventive step according to Article 56 EPC.
Any questions on patentability of computer-based inventions, software, AI or industrial robots?
Our attorneys have many years of expertise in patent law and are authorized to represent you before any patent office and court in Germany as well as internationally, also in China.
Please contact us if you are interested.
Sources:
Image:
slightly_different | pixabay.com | CCO License kombiniert mit Maky_Orel | pixabay.com | CCO License
Leave a Reply