T 0524/19 () of 16.9.2022

Summary of Facts and Submissions

I. The appeal is against the decision of the Examining Division to refuse patent application No. 13 736 554 based on the ground of lack of inventive step (Article 56 EPC).

II. Reference is made to the following documents:

D1 = |US 2010/036545 A1|

D3 = |WO 02/08057 A1 |

III. The Appellant (Applicant) requested at the end of oral proceedings, held on 16 September 2022, that the decision under appeal be set aside and that a patent be granted on the basis of the claims according to Annex A filed in reply to the summons.

IV. Claim 1 of Annex A reads (feature labelling added by the Board):

(A) Automated, self-sufficient operatable resource-pooling system (1) for self-adaptive risk sharing of airspace risks related to natural disaster events of a variable number of risk exposed aircraft fleets (81,..., 84) by pooling resources of the risk exposed aircraft fleets (81,..., 84) and by providing a self-sufficient risk protection based on the pooled resources for the risk exposed aircraft fleets (81,..., 84) by means of the resource pooling system (1),

(B) wherein risk exposed aircraft fleets (81,..., 84) are connected to the system (1) by means of a plurality of payment-receiving modules configured to receive and store payments from the risk exposed aircraft fleets (81,..., 84) for the pooling of their risks and resources,

(C) and wherein an automated transfer of risk exposure associated to the aircraft fleets is provided by the resource-pooling system (1), characterized,

(D) in that the system (1) comprises capturing means to receive transmitted fight (sic) plan parameters (102, 202) of the pooled risk exposed aircraft fleets (81,..., 84),

(E) wherein by means of a filter module the transmitted fight (sic) plan parameters (102, 202) are filtered for the detection of airport indicators indicating flown to airports (91,..., 94) by the corresponding pooled risk exposed aircraft fleet (81,..., 84),

(F) and wherein by means of the filtered airport indicators (1012, 2012) detected airports (91,..., 94) are stored to a table element (101, 201) of a selectable trigger-table (103, 203) assigned to an aircraft fleet identifier of the corresponding pooled risk exposed aircraft fleet,

(G) in that the system (1) comprises a trigger module (4) dynamically triggering on an airport data flow pathway of ground stations (911,..., 914) situated at said flown to airports (91,..., 94) based on the stored airport indicators of the trigger-table (103, 203),

(H) wherein the ground stations (911,..., 914) are linked via a communication network (50, 51) to a core engine (2),

(I) in that the core engine (2) comprises a receiver (3) for receiving, via a communication network interface (31), a transmission from the trigger module (4), said transmission including at least parameters regarding a time interval parameter (1011/2011) of an airport closing and an airport identification (1012/2012), wherein the receiver (3) and the ground stations (911, ... ,914) comprises (sic) an identification module comprising authentication data relevant for authenticating the receiver (3) and the ground stations (911, ... ,914) in the communication network (50,51), wherein the trigger module (4) is dynamically triggering on the airport data flow pathway of the ground stations (911,..., 914) via said communication network (50, 51),

(J) and wherein in case of a triggering of an occurrence of an airport closing of one of the airports (91,. .., 94) comprised in the selectable trigger-table (103, 203), operational parameters of the triggered airport (91,..., 94) comprising at least time interval parameters (1011, 2011) of the airport closing are captured and stored assigned to the corresponding table element (101, 201),

(K) in that for each triggered occurrence of an airport closing of one of the airports (91,..., 94) assigned to a table element (101, 201) of the selectable trigger-table (103, 203), the captured operational parameters of the airport closing are matched with natural disaster event data comprised in a predefined searchable table of natural disaster events in order to relate the airport closing to an occurrence of a natural disaster event comprised in the searchable table of natural disaster events by means of the core engine (2),

(L) wherein the resource pooling system (1) further comprises means for dynamically detecting occurrences of natural disaster events and set appropriate indicator flags in the table element of the corresponding risk together with storing related natural disaster event data and/or measuring parameters indicating at least time of occurrence and/or affected region of the natural disaster event,

(M) and wherein the system (1) is connected to appropriate sensors or measuring devices for the detection of the occurrence of such natural disaster events,

(N) in that the predefined searchable table of natural disaster events comprises table elements for each of the predefined risk transferred to the resource-pooling system (1),

(O) wherein each risk is related to parameters of a table element, defining the natural disaster events, (P) and wherein the resource pooling system (1) further comprises means for dynamically detect (sic) occurrences of such natural disaster events and set appropriate indicator flags in the table element of the corresponding risk together with storing related natural disaster event data and/or measuring parameters indicating at least time of occurrence and/or affected region of the natural disaster event,

(Q) in that in case that a match is established by the core engine (2), a corresponding trigger-flag is set by means of the core engine (2) to the assigned risk exposed aircraft fleets (81,..., 84) of the airport indicator (1012, 2012), and a parametric transfer of payments is assigned to this corresponding trigger-flag,

(R) in that said assignment of the parametric transfer of payments to the corresponding trigger-flag is automated activated by means of the system (1) for a dynamically scalable loss covering of the aircraft fleet (41,..., 44) with an (sic) definable upper coverage limit,

(S1) wherein the payments are automated scaled based on the likelihood of said risk exposure of a specific aircraft fleet (41,..., 44),

(S2) wherein the number of pooled risk exposed aircraft fleets (81,... , 84) is variable and self-adapted by the system 1 to a range where not-covariant occurring risks covered by the system (1) affect only a relatively small proportion of the totally pooled risk exposure of the aircraft fleets 81,... , 84 at a given time,

(T) and wherein said assignment of the parametric transfer of payments is automatedly (sic) activated only, if said transmission comprises a definable minimum number of airport identifications assigned to airport closings thus creating an implicit geographic spread of the closed airports of the flight plan,

(U) and wherein said core engine (2) comprises an additional filter module (5) for dynamically incrementing a time-based stack with the transmitted time interval parameters (1011, 2011) based on the selectable trigger-table (103, 203) and activating the assignment of the parametric transfer of payments to the corresponding trigger-flag by means of the filter module (5) if a threshold, triggered on the incremented stack value, is reached, and

(V) in that a loss associated with the triggered airport closing is distinctly covered by the system (1) based on the respective trigger-flag and based on the received and stored payment parameters from the pooled risk exposed aircraft fleets (81,..., 84) by the parametric payment transfer from the system (1) to the corresponding risk exposed aircraft fleets (81,..., 84) (W) by means of an automated activated damage recovering system (7) automatically operated by an automatically generated output signal of an (sic) failure deployment device (6) of the system (1).

V. The Appellant argued essentially as follows:

(a) Using a maximum number of airports in a geographical mapping of airport closures for detecting a natural disaster and calculating a risk transfer was technical and had a technical effect that could only be achieved by the technically skilled person through inventive activity.

(b) When dividing a claim into technical and non-technical features, the notional business person could not be assumed to have these kinds of technical skills.

Reasons for the Decision

1. The appeal is admissible.

2. The invention as claimed

2.1.1 The volcanic activity in Iceland in 2010 and the subsequent closure of airspace led to an estimated loss of 1.7 billion dollars for the airline industry. Between 15 and 21 April 2010 almost the entire European airspace was closed resulting in cancellation of all flights in, to and from Europe. The invention relates to dealing with such airport closures and related flight plan changes due to natural disaster events.

2.2 When aircraft are grounded for more than ten days, airline companies may no longer be able to pay the operating resources (kerosene, salaries, maintenance etc.) due to lack of revenues. It is an aim of the invention to reduce the risk that airline companies go bankrupt due to lack of cash for operation during or after natural disaster events. The airlines seek risk transfer by means of insurance technology to cover such unforeseeable events and to ensure operation of the aircraft fleets. The related technology should be able to cover risk events such as 1) strikes, riots etc.; 2) war, hijacking, terror; 3) pandemic-based risks; 4) extreme weather situations; 5) instabilities in Air Traffic Control (ATC); 6) volcanic ash. However, the covers are technically difficult to design because no standards e.g. for critical ash concentrations exist. It is an object of the invention to provide an automated system preventing imminent grounding of aircraft fleets due to missing financial resources after risk events and to provide a systematic and automated management of risk exposure.

2.3 The invention proposes determining, based on given business rules, the automatic payment of financial compensation to the affected business units, i.e. airlines and their fleets. This object is solved by monitoring relevant airport data, defining critical thresholds, and automation of cover payments in case of airport closures.

Article 56 EPC

2.4 Closest prior art

D1 is considered closest prior art, because it discloses all hardware components of claim 1.

2.5 D1

2.5.1 D1 discloses an automated system for a fleet of aircraft (40, 41, 42). The system comprises sensors (3, 411, 601) both in the aircraft and in the ground station (81) for measuring parameters relevant for geophysical disasters, e.g. sensors for wind speed, satellite images, water level sensors, water and wind temperature sensors etc. The system activates an emergency procedure in an aircraft when certain conditions are met (claim 1). Such a condition may be the event of reaching a threshold in an incremental stack memory (202). The stack memory stores critical weather and flight-specific data for defined time intervals (page 6, column 2, last but ninth line). In addition, ATIS (Automatic Terminal Information Service) data comprising relevant airport information is stored in the stack (claim 30). The likelihood of a risk exposure to the aircraft fleet is therefore defined by the threshold. The threshold is dynamically adapted ([0012]).

FORMULA/TABLE/GRAPHICD1

2.5.2 Furthermore, D1 discloses evaluating the probability of malfunction ([0012]) and calculation of [insurance] tariffs (page 3, column 2, center part: "the aviation system, for the first time, allows full automation of the additional tariff setting of the operating malfunction at all stages"; the Appellant here is Applicant for D1 too, therefore insurance tariffs are meant). These calculations are performed in a central processing unit (81) comprising an assembly module for evaluating the risk (101-103). The ATIS message comprises essential airport information including the information about the closure of parts of the airport (runways) or the entire airport. Therefore airport closures are taken into account for the risk evaluation and data relating to airport closures are saved in the central computer 81.

2.6 Differences

2.6.1 The main differences are therefore (technical features are underlined):

(a) payment-receiving modules;

(b) automated transfer of risk exposure associated to the aircraft fleets is provided (= automated premium payment);

(c) means for receiving flight plan data stored in a selectable trigger-table;

(d) airport closures are matched with natural disaster event data comprised in a predefined searchable table of natural disaster events;

(e) wherein each risk is related to parameters of a table element, defining the natural disaster events,

(f) setting flags in the table of corresponding risk together with storing related natural disaster event data and/or measuring parameters indicating at least time of occurrence and/or affected region of the natural disaster event;

(g) for a match a trigger-flag is set to the assigned risk exposed aircraft fleets of the airport indicator and a parametric transfer of payments is assigned to the trigger-flag;

(h) the payments are automaticallyscaled based on the likelihood of said risk exposure, the number of pooled risk exposed aircraft fleets is self-adapted;

(i) the payouts are activated only if said transmission comprises a definable minimum number of airport identifications assigned to airport closings thus creating an implicit geographic spread of the closed airports of the flight plan;

(j) a failure deployment device (6) of the system (1) triggers the payout.

2.7 Technical effects

2.7.1 The following (technical/non-technical) effects can be identified:

(a) payment-receiving modules: these means are implicit for any automated payment system; no specific technical effect is related thereto.

(b) automated transfer of risk exposure: these features are purely related to a business method;

(c) means for receiving flight plan data: these means are implicit when dealing with flight plan tables;

(d) a selectable trigger-table for flight plan data: storing flight plan data (in a table) implies that assignments of aircraft to specific airports can be extracted from the table;

(e) airport closures are matched: from the closed airports it can be inferred that a natural disaster has occurred;

(f) natural disaster event table: a time-dependent mapping of the occurrence of a natural disaster can be established;

(g) table with predefined risk: a risk evaluation based on the impact of a natural disaster related to a specific airport/fleet can be performed;

(h) automated and scaled payments: risk evaluation for calculating insurance cover and insurance reimbursement is related to a business method;

(i) geographic spread: mapping of airport closures in combination with the previous features allows matching of airport closures to a specific natural disaster;

(j) failure deployment device of the system: D1 discloses a failure deployment device. Linking the failure deployment device to the automatic payout realises electronically triggered payments.

2.7.2 The Appellant argued that feature (T), namely that an automatic payout can only take place if a minimum number of airport closings created "an implicit geographic spread of the closed airports of the flight plan", had the technical effect that a certain natural disaster can be inferred from easily ascertainable data (which airport is closed when and where?) without a great deal of computing and detection effort. This did not directly result from the insurance conditions and could not be specified by the notional business person. Consequently, this feature was purely technical.

2.7.3 Since the primary technical effect of feature (T) was that a natural disaster could be detected, it could not be argued that the technical effect was "diminished" by the fact that in the final effect it served exclusively to pay out an insurance premium. In general, the primary technical effect of a non-technical feature could not be diminished by the fact that in the final effect it serves exclusively a non-technical or business purpose. This would be tantamount to imputing technical knowledge to the notional business person. If non-technical features had both a technical and a non-technical effect, the technical effect had to be taken into account when assessing inventive step (see related case T 698/19, catchword).

2.7.4 However, the Board is of the opinion that, while a trigger feature such as a "minimum number of airport identifications assigned to airport closings" might, in certain contexts, be seen as technical, feature (T) must be assessed as a whole and in the context of the claimed invention. The above trigger condition serves exclusively as a condition that "said assignment of the parametric transfer of payments is automatedly (sic) activated", hence to implement the insurance policy and initiate the payment.

2.7.5 Feature (T) as a whole does not allow a natural disaster to be "detected" in any technical sense, it is merely an arbitrary rule based on a statistical inference from known data on airport closures. Certainly the notional business person has no knowledge of computer programming or detector design, but this is not what is claimed. The insurance business is based on probability and statistics, and the insurance business person must surely have some knowledge of their own business. Such a person would understand that if only one airport were closed, there is a high probability that it may be due to a local problem, whereas if ten airports in western Europe were closed, it is much more probable that a natural emergency is the cause. If the aim is to insure only against natural emergencies, then looking at previous statistical records would provide a suitable minimum number of airport closures to use in the policy. The Board does not see any technology at work here, it is just a choice by the notional business person drawing up the policy. For example, if, in a given region, the minimum number of airport closures required to trigger a payout is set to four, then if only three airports are closed, there is no payout, even if the closures are actually due to a natural disaster. So it is not a matter of "recognising" a natural disaster in the technical sense, but only a rule for a payout, which therefore has a purely economic effect.

2.7.6 Consequently, Feature (T) is considered to be a pure business constraint and does not have a technical effect.

2.7.7 To summarise, the effects of the differing features therefore are

(i) minimum number of airport closures triggers the automated payment; the character of the features concerned is non-technical, the purpose is non-technical (transfer of financial risks)

(ii) identifying type and risk factor of a natural disaster based on flight plan data, airport closures and a natural disaster event table with associated risks; the character of the features concerned is technical, the purpose is both technical (risk evaluation) and non-technical (transfer of financial risks).

(iii) automatisation of payments; the character of the payment means used is technical, the character of the implemented method (features (Q) to (S2), (U), (V)) is non-technical.

2.7.8 The application as a whole is silent on the technical details of how, in detail, the values for the risk factors - corresponding to specific geophysical events - and the value for the "likelihood of said risk exposure" are determined. It is also unclear which physical characteristics or parameters are taken into account for these values and how the situation of a natural disaster or an airport closure can be assessed using these parameters. Furthermore, it is not defined how the trigger level that triggers the payout is calculated.

2.7.9 The effect of features (i) to (iii) is therefore limited to the broad wording of the corresponding features in claim 1. Objections under Articles 83 and 84 EPC were raised in the summons in this respect. However, the possible objections under Articles 84 and 83 EPC do not have an impact on the assessment of inventive step.

2.8 Problem

2.8.1 The Board is of the opinion that the notional business person, who does not have any technical knowledge or technical skills, defines in the insurance policy the following business framework conditions for the system:

(a) It must be defined which specific geophysical events (volcano ash, riots, hurricanes, strikes etc.) are covered (or not).

(b) It must further be defined in the insurance conditions which airports/specific regions, which specific time interval and which specific types of event are to be taken into account, e.g. only Eurasian and American airport closures may be taken into account for a minimum of seven consecutive days of closure, financial damage due to strike within the airline company and closures for less than seven days may not be taken into account etc.

(c) Another implicit condition is that only groundings of scheduled aircraft (i.e. according to a flight plan) are considered.

(d) The correlation between the risk factor and the premium payed out must further be defined in the policy.

(e) The scaling factor for the scaled payments must be defined.

(f) As discussed above a further condition may be that payouts are triggered only when a minimum number of aircraft of a fleet is concerned. A clause may be provided that reimbursement is only provided when "clustering" of airport closures occurs, i.e. the payments are only activated if there are massive airport closures and a natural event is classified as a natural disaster (e.g. four airports in a given region).

2.8.2 In the present case the skilled person solving the objective technical problem is not the business person, but a computer specialist, because the solution of the technical problem concerns principally re-programming the central CPU (e.g. of the ground station 81). However, the notional business person forms the framework and the subject-matter of the invention through the insurance conditions. This is very frequently the case for technical inventions, e.g. a business person may instruct an engineer to design a double-deck aircraft for up to 850 passengers with a budget of 10 billion dollars. The solution and technical details to this object can only be provided by a technically skilled person. In the present case the notional business person (e.g. insurance company in cooperation with the airline companies concerned) instructs a computer specialist with the implementation of an automated system. Their task is to adapt the software in the central computer.

2.8.3 Non-technical features within the meaning of Article 52(2)(c) EPC, i.e. features related to business methods, are allowed in the context of other technical features, but cannot contribute to inventive step. These features can thus be included into the formulation of the task (see, inter alia, G 1/19 [reasons 31], G 3/08, T 641/00, headnote 2, Case Law of the Boards of Appeal, 10**(th) Edition 2022, Sections I.D.9.2.1 to 9.2.8). According to T 641/00, the aim to be achieved in a non-technical field might legitimately appear in the formulation of the problem as part of the framework of the technical problem. Therefore, the non-technical features (Q) to (V) ("damage cover" and "automated payment") can be included into the task formulation as a framework condition to be fulfilled.

2.8.4 The technical problem to be solved therefore can be defined as providing a systematic and automated management of financial and technical risk exposure associated to cancellation of scheduled flights due to airport closures caused by natural disasters, including implementing the claimed non-technical features (Q) to (V).

2.9 Obviousness

2.9.1 In the following, (i), (ii) and (iii) refer to the effects mentioned above under point 2.7.7.

ad (i)

2.9.2 Feature (T) was the main topic of discussion at the oral proceedings. The feature states that payments are only initiated when a minimum number of airports are closed.

2.9.3 The failure of several airports in Germany due to lack of gas, in France due to strike, in Ukraine due to war and in Italy due to earthquake was discussed. These cases may not all be covered by the insurance policy, but it needs a quantitative parameter to determine a "disaster", and this quantitative parameter is defined in the insurance policy and given by the notional business person to the technically skilled person for implementation. The insurance conditions require monitoring airport closures within defined regions ("geographic spread"), and it would be straightforward for the technically skilled person to arrive at an appropriate means for implementing this in an automatic manner.

ad (ii)

2.9.4 It is (at least implicitly) a non-technical constraint that the amount to be paid out should be dependent on the number of aircraft actually impacted by the airport closures. Therefore, in order to deal with the technical and financial consequences of airport closures, the Board is of the opinion that it is obvious to the skilled person to consider the concerned airports and flight plan routes to and from the closed airports according to a selectable flight plan table (if only scheduled flight are covered by the insurance policy). In view of the objective technical problem to be solved, it is a normal option to monitor which flight plan connection (and therefore which fleets and airlines) are concerned by the closure of specific airports and air-spaces. Furthermore, the emergency system of D3 teaches ([0084]) to take flight plan data into account. The skilled person would therefore adapt the software architecture of D1 and correlate the airport closure events with the flight plan data. Flight plan data is in general available in form of a selectable trigger-table in order to retrieve the data.

2.9.5 It is a normal option to provide a time-dependent mapping of airport closures in relation to the aircraft being concerned and setting a trigger-flag to the assigned risk exposed aircraft fleets of the airport indicator.

2.9.6 Clustering, i.e. a minimum number of aircraft closures in a mapped region, is considered a pre-requisite for payment and a non-technical constraint. Also paying out according to the number of aircraft concerned is a non-technical constraint (see the related case T 288/19). The technically skilled person merely has to solve the (technical) problem of the technical implementation, i.e. the implementation of the business constraints, into the software system. The skilled person would therefore extract the flight plan data accordingly and map the (temporal or geographical) evolution. It is a normal option to monitor which flight plan connections (and therefore which airlines and aircraft) are concerned by the closure of specific airports and to provide a time-dependent mapping of the data (feature (P)).

ad(iii)

2.9.7 Features (Q) to (V), relate to automatically triggering payouts of insurance covers, and directly result from the problem to be solved. Furthermore, the parameterization of the risk evaluation and reimbursement model is ultimately influenced by business requirements (see also reasons 2.13 of T 1798/13).

2.9.8 In T 848/15 (reasons 3.2) it was held that insurance risk management related exclusively to economic considerations in the framework of purely economic models defined by an economist and therefore was not inventive within the meaning of Article 56 EPC (cf. also T 698/19, reasons 3.8.2 ff). Accordingly, non-technical features purely relating to an insurance model (e.g. non-technical part of features (b), (h) to (j) in the present case, see point 2.7.1 above) are obvious for the same reasoning.

2.9.9 Also in T 550/14 (reasons 2.13) the Board could not see any difficulties for the person skilled in the art of data processing to implement the business concept of an insurance model on a networked computer system. The information which needs to be collected for triggering the payout implies this information being up-to-date and the frequency of its collection. It leads the skilled person to seek the appropriate technique for collecting this information, such as a periodic push and pull mode which is a routine design consideration at this broad level.

2.9.10 Although D1 has primarily a different purpose with respect to the present invention, it provides teachings for all the technical features of the proposed solution except a means for implementing a time-dependent mapping of airport closures and identifying geophysical events according to an event table. As discussed above, these features are however obvious to the technically skilled person in the given context and the framework of the business model (insurance conditions). Applying the technical infrastructure disclosed in D1 for a different purpose, i.e. automated premium payouts, is directly suggested by the problem to be solved, including the non-technical constraints. In addition, the Board does not consider automatically adapting insurance tariffs (as suggested in D1) - and therefore indirectly adapting insurance premiums - and automatically paying out insurance premiums to be remote from each other.

2.9.11 To summarise, the subject-matter of claim 1 of Annex A does not involve an inventive step over document D1 in combination with the common general knowledge of the skilled person and is therefore not inventive within the meaning of Article 56 EPC.

Order

For these reasons it is decided that:

The appeal is dismissed.