T 1898/20 (Method and server for providing air fare availabilities/SKYSCANNER) of 5.12.2023

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division to refuse the European patent application No. 14777114.1 pursuant to Article 97(2) EPC on the ground of lack of inventive step (Article 56 EPC).

II. In the statement setting out the grounds of appeal, the appellant requested that the decision under appeal be set aside and that a patent be granted on the basis of the main request filed on 24 April 2020 or the first or second auxiliary requests filed on 27 April 2020. The appellant further requested that the appeal fee be reimbursed according to Rule 103 EPC due to a substantial procedural violation. Oral proceedings were requested as an auxiliary measure.

III. In the communication pursuant to Article 15(1) of the Rules of Procedure of the Boards of Appeal, the Board set out its preliminary opinion in regard to inventive step. The Board furthermore outlined its preliminary view that it could not identify a substantial procedural violation and the appeal fee could not be reimbursed.

IV. In a letter of reply, the appellant presented further arguments with regard to how to assess inventive step, the selection of the closest prior art and a potential procedural violation by refusing the application without a search for written prior art.

V. The oral proceedings took place on 5 December 2023. Following a discussion of the issues of closest prior art and a potential substantial procedural violation, the appellant withdrew the request for reimbursement of the appeal fee. The chairperson announced the decision at the end of the oral proceedings.

VI. Claim 1 of the main request reads as follows :

"A computer-implemented method of inferring, from a Distribution System server response, which fare classes are available, the method including the steps of:

(i) a computer server receiving a request for a fare price for goods or services, together with parameters defining those goods or services,

(ii) configuring one or more processors to determine estimated prices from an incomplete historical price dataset by analysing patterns in that dataset, at any time with respect to step (i) above, wherein this step comprises:(a) obtaining historical price quotes from a computer data store;(b) grouping the historical price quotes by category;(c) deriving statistics for each group;(d) storing on a computer for each group a classifier including the derived statistics, and(e) identifying groups with stored classifiers to which the requested price corresponds;

(iii) configuring one or more processors to calculate estimates for the requested fare price for the goods or services that satisfy the parameters, and calculating estimates for the requested fare price for the goods or services that satisfy the parameters;

(iv) sending the request to a Distribution System server for fare prices;

(v) receiving from the Distribution System server the Distribution System server's fare prices;

(vi) comparing the calculated estimates for the requested fare price from step (iii) with the Distribution System server's fare prices received in step (v) so as to infer a fare class availability of the Distribution System server, and

(vii) the computer server providing the inferred fare class availability of the Distribution System server to a computing device."

Claim 13 of the main request reads as follows :

"An inferring server configured to infer from a Distribution System server which fare classes are available, the inferring server configured to:

(i) receive a request for a fare price for goods or services, together with parameters defining those goods or services,

(ii) configure one or more processors to determine estimated prices from an incomplete historical price dataset by analysing patterns in that dataset, at any time with respect to

(i) above, wherein the configuring comprises:(a) obtaining historical price quotes from a computer data store;(b) grouping the historical price quotes by category;(c) deriving statistics for each group;(d) storing on a computer for each group a classifier including the derived statistics, and(e) identifying groups with stored classifiers to which the requested price corresponds;

(iii) configure one or more processors to calculate estimates for the requested fare price for the goods or services that satisfy the parameters, and calculate estimates for the requested fare price for the goods or services that satisfy the parameters;

(iv) send the request to a Distribution System server for fare prices;

(v) receive from the Distribution System server the Distribution System server's fare prices;

(vi) compare the calculated estimates for the requested fare price from (iii) with the Distribution System server's fare prices received in (v) so as to infer a fare class availability of the Distribution System server, and

(vii) provide the inferred fare class availability of the Distribution System server to a computing device."

Claim 1 of the first auxiliary request is identical to claim 1 of the main request. Claim 13 of the first auxiliary request is identical to claim 1 of the second auxiliary request and adds to claim 13 of the main request the features "A system including a Distribution System server, characterized in that the system includes a computer, a computer data store and an inferring server [as defined in claim 13 of the main request]".

Reasons for the Decision

1. The invention

1.1 The invention concerns methods and systems for in­fer­ring which fare classes are available for a journey or service, such as for air fares, train fares, hotel prices, any type of goods or services whose prices are not fixed but instead are variable, see page 1, first paragraph, of the application.

1.2 In the context of airfares, a Global Distribution System (GDS) is known to gather schedules from the Official Airline Guide (OAG), fares from ATPCO and fare class availability from the airlines. The stored infor­mation is periodically updated, see page 1, second paragraph. The GDS receives queries to quote for a given route and date(s) and determines valid itineraries, valid and available fares and adds the correct taxes and sur­charges. Running a query against a GDS system can be slow, costs money and requires the use of energy to perform the cal­culations and to transmit the results. Storing fare class availabilities for all possible routes between all possible airports for a sufficiently long time horizon would require a very substantial data storage capacity, see page 1, second paragraph.

1.3 The invention proposes to estimate the availability (service class) from observed quotes (obtained from airline websites, OTAs, etc.) and FROP fares (a data­base of ATPCO) which are compared to each other to find matching ones, see page 23, line 16, to page 24, line 32. For each observed quote the fare class availability can be derived by applying a service class from equiva­lent FROP records. The central idea is to estimate the availability rather than require it by a query from the GDS or airline reservation system.

2. Article 56 EPC

2.1 Independent system claim 13 of the main request was refused for a lack of inventive step over a general purpose computer system which the examining division considered to be notori­ous­ly known, see points II.2 and II.4 of the impugned decision. The examining division argued in view of claim 1 of the second auxiliary request which it considered to be more limited than claim 13 of the main request and stated that the same objections apply mutatis mutandis to the subject-matter of the independent claims of main and first auxiliary request, see point II.12 of the impugned decision.

2.2 The examining division considered that claim 1 of the second auxiliary request defined the tech­nical features of a system including a Distribu­tion System server, a computer, a computer data store and an inferring server and one or more processors of the inferring server, and stated that these features did not go beyond features of a general purpose computing system which it considered to be notorious­ly known.

2.3 The appellant in summary argued, see points 66 to 78 of the Grounds, that a general purpose computer system cannot be considered to represent the closest prior art. A suitable starting point for the assessment of inventive step was a Distribution System server which was referred to in the application, page 1, lines 16 to 18, and page 27, line 26 onwards in combination with Figure 17.

2.4 In the Board's view this case, like many in this field, is all about drawing the line between non-technical and technical subject-matter. This is of critical importance since as stated in the COMVIK decision T 641/00 (Two identities/COMVIK), only features with technical character can support the presence of inventive step. For a correct application of the COMVIK approach first the closest technical prior art must be identified.

2.5 The examining division assessed inventive step starting from a client server computer system for which it did not cite any prior art as it regarded such a system as being "notorious".

2.6 According to the established case law of the Boards of Appeal it is possible to raise an objection of lack of inventive step without documented prior art (see e.g. T 939/92, point 2.3, OJ EPO 1996, 309). This is regarded as allowable where the objection is based on "notorious knowledge" or indisputably forms part of the common general knowledge. In such cases it would be inappropriate to carry out an additional search for documented prior art on purely formal grounds (see e.g. T 1242/04, point 9.2). The Case law of the Board's of Appeal, 10th edition, IV.B.4, page 1171, further sets out that an examining division should normally not refuse an application for lack of inventive step if the invention as claimed contained at least one technical feature which was not notorious. The term "notorious" had to be interpreted narrowly.

2.7 A client-server-computer-system at the general level at which it is referred to in the present application may be regarded as "notorious". Also the description of the present application builds on such knowledge when disclosing the invention. There are no specific tech­nical explanations found in the application documents about how a server works, how a client works and how those communicate. The details of the invention are disclosed under the assumption that a client-server-system was known in the art and a skilled reader would know how such a general purpose client-server-architecture works on the technical level required for understanding the invention.

2.8 If a specific client-server-architecture was of importance, the appellant inevitably would run into problems of sufficiency of disclosure, antecedent basis and enablement, since the description is silent with regard to the requirement of a specific client-server-structure. This was the appellant's position during oral proceedings, when it criticized the contested decision for referring to notorious knowledge without proving such knowledge by a documentary reference.

However, for the appellant, a Dis­tri­bution System server as claimed cannot be regarded as "notorious", as it represents a server which implements specific functions and serves a specific purpose.

2.9 In the written proceedings, the appellant argued that a suitable starting point for the assessment of inventive step was a Distribution System server which was referred to in the application (see point 2.3 above). The Board therefore originally assessed the subject-matter of the independent claims on the assumption that such a Distribution System server was common general knowledge.

2.10 However, the appellant stated later on in the appeal procedure, in particular during oral proceedings, that the cited parts of the description were not necessarily admissions of common general knowledge.

2.11 In contrast to US Patent Law, the EPC does not know the principle of admitted prior art. According to the Case law of the Boards of Appeal, 10th edition, I.C.2.7, bridging paragraph, pages 83 and 84, the acknowledge­ment of prior art in a patent applica­tion could no longer be relied upon if a patent pro­prietor resiled from an acknowledgement of that prior art. Such a Distribution System server therefore can no longer be considered to indisputably form part of the common general knowledge, as required if an additional search for documented prior art to be dispensed with on purely formal grounds (see e.g. T 1242/04, point 9.2).

2.12 The appellant argued that the computer-implemented method of claim 1 of the main request was distinct from a Distribution Server system by the specific method of inferring which fare classes are available in order to be able to properly assess whether this alleged difference achieves the technical effect of saving storage capacity in the caching of results, see application, page 3, lines 16 to 18, and page 13, lines 9 to 19. Hence, documentary prior art about the technical functioning of a Distribution Server system at the technical level of storage management must be at hand.

2.13 However, the Board has at its disposal only the general statement, see point II.4 of the impugned decision, that such a system was "notorious". No documents were cited and no documents can be found in the search report. The Board is therefore not able to assess the appellant's afore-mentioned argument regarding savings in storage capacity in order to take a final decision with regard to inventive step.

2.14 As a result, after considering all the relevant circum­stances of the case at hand, the Board, noting that Article 11 RPBA 2020 cannot be seen as limiting the discretionary power of the Board provided by Article 111(1) EPC, considers it appropriate to remit the case to the examining division for further prosecution.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the department of first instance for resumption of examination proceedings, including a search, based on the main request filed on 24 April 2020.