T 1893/22 (Cloud-based industrial control/SIEMENS) of 16.7.2024

Summary of Facts and Submissions

I. The appeal is directed against the opposition division's decision to revoke the present European patent.

II. The opposition division found that the opposition was admissible and that the claimed subject-matter did not involve an inventive step (main request and second to fourth auxiliary requests) having regard to the following prior-art documents:

D1: EP 2 924 572 A2

D2: "Beckhoff-Lösungen für Industrie 4.0 und IoT",

SPS-Magazin, 13 May 2016.

Moreover, the first auxiliary request was found to violate Rule 80 EPC.

III. Oral proceedings before the board were held on 16 July 2024. The parties' final requests were as follows:

- The appellant-proprietor (henceforth: "the proprietor") requested that the appealed decision be set aside and that the opposition be rejected as inadmissible or that the opposition be rejected, i.e. that the patent be maintained as granted (main request). Alternatively, the proprietor requested that the patent be maintained in amended form in accordance with one of the first to fourth auxiliary requests. All these claim requests were identical to those underlying the decision under appeal.

Furthermore, the proprietor requested that the board be enlarged by at least a legally qualified member.

The proprietor also requested that a question be referred to the Enlarged Board of Appeal in accordance with Article 112(1)(a) EPC.

Finally, the proprietor requested that the opposition division's decision to consider the attack of the opponent based on Figure 2 and paragraphs [0020] and [0026] of D1 be set aside and that this attack not be admitted into the proceedings.

- The respondent (henceforth: "the opponent") requested that the appeal be dismissed.

At the end of the oral proceedings, the board's decision was announced.

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

"System configured to execute a closed loop control on data for cloud-based applications (70) comprising:

* an industrial automation device (30) configured to generate cloud variables,

* a cloud-based application (70), which is hosted by a network device with a cloud-computing infrastructure,

* an industrial controller (20) configured to control the industrial automation device by a

user-defined program (22), hosted by industrial controller,

* the user-defined program configured to receive the cloud variables,

* a cloud agent (21) configured for communication with the user-defined control program, and for communication with the cloud-based application, further configured to: collecting the cloud variables and sending the cloud variables to the cloud-based application,

* the cloud-based application (70) configured to determine updated optimized cloud variables and to notify the cloud agent (21) in the industrial controller with the updated optimized cloud variables

* the cloud agent (21) configured to reload the updated optimized cloud variables and to notify the

user-defined control program with the updated optimized cloud variables,

* the user-defined control program further configured to include cloud constructs and to reload the updated optimized cloud variables in the user-defined control program,

wherein the cloud constructs declare the cloud variables that are to be updated by the cloud-based application (70) and request the updated optimized cloud variables on runtime."

Claim 1 of the first auxiliary request comprises the features of granted claims 1 and 2. Granted claim 2 comprises the feature that the "cloud agent" is hosted in the "industrial controller".

Claim 1 of the second auxiliary request comprises the features of granted claims 1 and 4, i.e. the following wording is added:

"wherein the user-defined program is configured as a programmable logic controller-program (22)."

Claim 1 of the third auxiliary request comprises the features of granted claims 1 and 9, i.e. the following wording is added:

"wherein the industrial automation system is configured in a programming language and the cloud variables are defined in the programming language of the industrial automation system."

Claim 1 of the fourth auxiliary request comprises the features of granted claims 1 and 5, i.e. the following wording is added:

"wherein the cloud agent (21) includes a unique identity number for identifying the user-defined control program (22), for which the cloud variables is[sic] collected and on which the cloud variables are to be updated."

Reasons for the Decision

1. The opposed patent concerns cloud-based optimisations of industrial-process parameters, where configurable parameters of a "user-defined control program" are updated during runtime.

2. Request for an enlargement of the board

2.1 The proprietor requested that the board be enlarged by at least one additional legally qualified member. This was warranted due to this case potentially setting a precedent regarding proper representation in proceedings established by the EPC.

2.2 The board does not consider that the nature of the appeal indeed requires a composition of three technically qualified members and two legally qualified members, as outlined in Article 9 RPBA. Rather, the board holds that the case does not go beyond what may be handled by a board with an ordinary composition. In particular, all the members of the present board were in the position to properly interpret and apply the relevant provisions of the EPC to the present case.

2.3 Therefore, the request for an enlargement of the board has been refused (Article 9 RPBA).

3. Admissibility of the opposition

3.1 The proprietor has contested the admissibility of the opposition. The contestation relies on the following points:

(i) The opponent's professional representative cannot represent the company since he is simultaneously managing the legal entity he represents;

(ii) the identity of the opponent could not be unequivocally determined either at the end of the opposition period or during the appeal proceedings;

(iii) the opponent cannot act as such because carrying out activities typically carried out by professional representatives without the necessary qualifications circumvents the principles of representation;

(iv) the opponent's change of name affects the admissibility of the opposition;

(v) the opponent referred, in its notice of opposition, to the German translation of the claims, and not to the version of the patent in the language of the proceedings.

However, none of these arguments or objections convinces the board that the opposition is inadmissible.

3.2 Representation

3.2.1 The proprietor argued that Articles 133 and 134 EPC, together with Rule 152 EPC and the Decision of the President of the EPO of 12 July 2007, did not constitute a complete and self-contained set of rules on representation in proceedings established by the EPC. National laws governing representation were also relevant.

3.2.2 The relevance of national laws appears to be invoked in two ways. In the statement of grounds of appeal, the appellant referred to both German law (§ 181 BGB) and French law (Article 1161 of the French Civil Code) without mentioning Article 125 EPC. The board has considered those references as suggesting that either German law or French law would apply to the question whether Mr Nübold could actually represent the opponent in the present proceedings.

In its letter of 17 May 2024, the appellant apparently refined its approach: it contended the existence under Article 125 EPC of a procedural principle that prevented the opponent from appointing Mr Henrik Nübold as representative, since such an authorisation formed a "self-dealing" situation in which Mr Henrik Nübold, in his function as the president of a "société simplifiée unipersonnelle", appointed himself as a professional representative in this case. Yet, such a self-dealing, also known as "Insichgeschäft" under German law or "transactions intéressées" under French law, was illegitimate and rendered the appointment null and void.

3.2.3 The board, however, follows the analysis of the decision under appeal and the arguments provided therein. In summary,

- Articles 133 and 134 EPC together with Rule 152 EPC and the Decision of the President of the EPO of 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128) indeed constitute a complete and self-contained set of rules on representation in proceedings established by the EPC.

- According to these rules, a legal person having its seat in an EPC contracting state is not obliged to be represented by a professional representative (Article 133(1) EPC). Furthermore, persons whose names appear on the list of professional representatives are entitled to act in all proceedings established by the EPC (Article 134 EPC).

- In the present case, the opponent is a French company. According to the available evidence, Mr Nübold is not an employee, but the president of a "société simplifiée unipersonnelle" (SASU) under French law (cf. Article L227-1 of the French Commercial Code). In this capacity, he was entitled to represent SASU Cabinet NÜ at the time the opposition was filed. Indeed, a legal person having its seat in an EPC contracting state can therefore act in proceedings before the EPO through its legal representatives. As correctly pointed out by the opposition division, the fact that Mr Nübold is a professional representative cannot have a negative impact on his competence and ability to represent the opponent as the president of the SASU, since under French law he is entitled to act on behalf of the legal person in all circumstances (see Article L227 and L227-6 of the French Commercial Code). The fact that Mr Nübold is a professional representative can only mean that he would be entitled to act in proceedings before the EPO not only as the president of the SASU, but also as a professional representative appointed by that legal person. Therefore, even if national law were to apply and would prevent the company from appointing Mr Nübold as its professional representative and attorney, still it would not prevent him from representing the company as its president.

3.2.4 In view of the above considerations, it is only for the sake of completeness that the board notes that neither the references to French and German law nor the reference to general principles under Article 125 EPC could, in its view, prevent the company from appointing Mr Nübold as a professional representative before the EPO.

3.2.5 If one considers the reference to French law as potentially applicable to the present case, given that the company is based in France, the following observations can be made:

The clear wording of Article 1161 of the French Civil Code shows that it would not apply, even in national proceedings, to a situation like the one before the board. The article states:

"En matière de représentation des personnes physiques, un représentant ne peut agir pour le compte de plusieurs parties au contrat en opposition d'intérêts ni contracter pour son propre compte avec le représenté.

En ces cas, l'acte accompli est nul à moins que la loi ne l'autorise ou que le représenté ne l'ait autorisé ou ratifié."

The conflict of interest that this provision aims to prevent is limited to cases where a representative (agent) acts on behalf of a natural person, not a company. Even if the board were to consider this provision relevant to the authorisation of legal proceedings - an assumption that is doubtful - and even if Mr Nübold acted as the professional representative of the SASU when filing the notice of opposition, Article 1161 of the French Civil Code would not apply, as the SASU, although a simplified legal entity, is still a company.

3.2.6 Concerning the reference to German law, the board could not see how this law would directly apply to the question whether a French company could appoint a person as a representative for proceedings before the EPO. No argument was provided in support of such an application.

3.2.7 If one considers the second approach using French, German and Swiss law as evidence of a general principle under national law prohibiting the concept of

"self-dealing", and claiming that this principle is relevant in EPO proceedings under Article 125 EPC, the following observations apply:

- It is unclear what legal (procedural) gap exists that would need to be filled under Article 125 EPC, which is a prerequisite for its application.

- It is questionable whether invoking provisions from only three countries would be sufficient to establish the existence of a general principle of procedural law applicable under Article 125 EPC.

- Even if these provisions were considered sufficient, they pertain to substantive law rather than to procedural matters. These provisions in fact address conflicts of interest in private legal transactions, not the granting of an authorisation from a company to a representative for legal or court proceedings. According to the established case law of the Boards of Appeal, principles of procedural law generally recognised in the Contracting States within the meaning of Article 125 EPC do not include specific rules of substantive law of any Contracting State (cf. J 15/86, Reasons 11).

- The purpose of the national civil provisions invoked is to prevent conflicts of interest and protect a person represented in a legal transaction carried out by its representative/agent. In the present situation, it is unclear what potential conflict of interest might exist. The company in question has only one shareholder - a fact that has not been contested. This individual also serves as the company's president and representative. Therefore, no apparent conflict of interest arises.

3.2.8 In conclusion, even if Mr Nübold were not entitled to represent the opponent as its president (which is not the case), no principle could be derived from national law that would prevent him from being appointed as the opponent's professional representative.

3.3 Identity of the opponent

3.3.1 According to the proprietor, the identity of the opponent could not be unequivocally established either at the end of the opposition period or during the appeal proceedings. The uncertainty arises because it is unclear whether Mr Henrik Nübold, the opponent's representative, lodged the opposition on behalf of himself or in another capacity, such as the president, director, or company secretary of SARL Cabinet NÜ (see the letter of 17 May 2024, page 3). The proprietor points out that Mr Nübold signed documents using his status as a European patent attorney and included his representative number, which typically suggests he was acting on behalf of a third party (ibidem). The proprietor further argues that, if Mr Nübold had intended to act on behalf of himself or in his capacity as the president of SARL Cabinet NÜ, there would have been no need to reference his status as a European patent attorney. Since European patent attorneys usually act for third parties, this raises doubts as to whether Mr Nübold was acting in his personal capacity or as a representative of the company.

3.3.2 However, the board does not agree with this analysis. The opposition was clearly filed on behalf of SARL Cabinet NÜ (see the notice of opposition). The only uncertainty, based on the submissions of the proprietor itself, would concern whether Mr Nübold is representing the opponent as a European patent attorney appointed by SARL Cabinet NÜ or in his capacity as the president of that company. Nonetheless, the board finds it difficult to understand how this alleged ambiguity could raise any doubt about the identity of the opponent in the present proceedings.

3.4 Circumvention of the law

3.4.1 Concerning the reference to G 3/97 and the argument that the opponent is a company that, by filing an opposition, is conducting activities that are reserved to professional representatives, the board makes the following observations.

3.4.2 The case law of the Boards of Appeal has established that if an opponent acts on behalf of a client in the context of activities typically associated with professional representatives - without possessing the necessary qualifications (as required by Article 134 EPC) - this could indeed constitute a "circumvention of the law". This would occur if a person not entitled to act as a professional representative performs all the activities typically carried out by professional representatives while assuming the role of a party, in order to circumvent the prohibition on unqualified representation.

3.4.3 In the present case, Mr Nübold is a qualified professional representative. There is no indication that an unqualified person is acting as a representative by filing oppositions on behalf of third parties. Therefore and contrary to the proprietor's allegation, the involvement of the present opponent cannot be regarded as "circumventing the law by abuse of process" within the meaning of Headnote 1(b) of G 3/97.

3.5 Change of the opponent's name

As regards the change of the opponent's name (i.e. from "SASU" to "SARL"), the board fully endorses the analysis set out in Reasons 3.1.5 and 3.1.6 of the contested decision (cf. Article 15(8) RPBA).

3.6 German version of the claims

Finally, the fact that the notice of opposition referred to the German version of the claims, while the language of the proceedings is English, did not make the respective attacks incomprehensible. Hence, this cannot be a reason to consider the opposition inadmissible per se.

3.7 Conclusion

In conclusion, the board agrees with the decision under appeal that the opposition is admissible (Rule 76(2)(a) and (d) EPC).

4. Request for a referral to the Enlarged Board of Appeal

4.1 The proprietor requested that the question shall be referred to the Enlarged Board of Appeal "whether Articles 133 and 134 EPC together with Rule 152 EPC and the Decision of the President of the EPO of 12 July 2007 on the filing of authorisations (OJ SE 3/2007, 128) constitute a complete and self-contained set of rules on representation in proceedings established by the EPC".

4.2 The board, however, holds that there is no need to refer this question to the Enlarged Board of Appeal. As explained above, the opponent's representative is indeed entitled to represent the opponent as its president. Even if this were not the case, the proprietor has not demonstrated any prohibition or principle under national law that would in fact prevent the opponent's professional representative from acting in these proceedings. Therefore, the answer to the proposed question would not affect the outcome of this case.

4.3 In conclusion, the request for a referral of the case to the Enlarged Board of Appeal has been refused (Article 112(1)(a) EPC).

5. Main request (patent as granted)

5.1 Claim 1 of the main request includes the following limiting features (board's labelling):

M1.1 System configured to execute a closed-loop control on data for cloud-based applications comprising:

M1.2 an industrial automation device configured to generate cloud variables,

M1.3 a cloud-based application, which is hosted by a network device with a cloud-computing infrastructure,

M1.4 an industrial controller configured to control the industrial automation device by a user-defined program, hosted by industrial controller,

M1.4.1 the user-defined program configured to receive the cloud variables,

M1.5 a cloud agent configured for communication with the user-defined control program, and for communication with the cloud-based application,

M1.5.1 further configured to: collecting the cloud variables and sending the cloud variables to the cloud-based application,

M1.5.1.1 the cloud-based application configured to determine updated optimised cloud variables and to notify the cloud agent in the industrial controller with the updated optimised cloud variables,

M1.5.2 the cloud agent configured to reload the updated optimised cloud variables and to notify the user-defined control program with the updated optimised cloud variables,

M1.5.3 the user-defined control program further configured to include cloud constructs and to reload the updated optimised cloud variables in the user-defined control program,

M1.6 wherein the cloud constructs declare the cloud variables that are to be updated by the cloud-based application and request the updated optimized cloud variables on runtime.

5.2 Allegedly late-filed objection under Article 100(a) EPC

5.2.1 The proprietor argued that the objection constituted a late-filed line of attack, as it was based on new facts relying on document D1 which had not been previously discussed. Notably, the original line of attack presented with the notice of opposition relied solely on Figure 5, whereas the attack presented during the oral proceedings before the opposition division was predicated on the embodiment of Figure 2. The latter comprised a "boiler system" with an on-premise "cloud agent", whereas the former related to a "boiler system" where the communication with the cloud services involved a "client device". Since it was not clear what these embodiments had in common, the attack based on the embodiment of Figure 2 constituted a new,

late-filed attack which should never had been admitted into the proceedings.

5.2.2 Irrespective of the question whether there is any legal basis in the EPC to "unadmit" an already admitted line of attack, it is apparent to the board that the "boiler system" shown in Figure 5 is the same "boiler system" as depicted in Figure 2. Thus, the board concurs with the opponent in that the objection as to lack of novelty presented during the oral proceedings before the opposition division essentially represents a new argument rather than a new line of attack which was based on new facts.

5.2.3 In view of the above, the board sees no reason to overturn the opposition division's decision to admit the opponent's (allegedly late-filed) line of attack.

5.3 Inventive step in view of document D1 (Article 56 EPC)

5.3.1 As to feature M1.1, the board is not convinced by the proprietor's argument that there was no automated "closed control loop" based on the "updated optimised cloud-variables" disclosed in document D1, since only a solution requiring "human intervention" was disclosed therein. Notably, paragraph [0023] of D1 discloses a controller performing "automated decision-making", which involves providing "parameters [...] directly to a controller" (see paragraph [0020] of D1). Moreover, feature M1.1 does not even contain the aspect of a "closed control loop" for controlling the industrial device, as also noted by the opponent. Consequently, feature M1.1 is indeed anticipated by document D1.

5.3.2 As to feature M1.2, the board concurs with the opposition division and the opponent that document D1 discloses the "industrial automation device" (denoted in D1 as "industrial device 208, 210" and comprising an "industrial controller", see paragraphs [0022] and [0023]) providing data to the cloud. As argued by the opponent, the data provided to the cloud inherently constitutes "cloud data". Moreover, it is implied that the data needs to adhere to predefined formatting conventions, since otherwise the system of document D1 could not work properly. Thus, the claimed "cloud constructs" (see features M1.5.3 and M1.6) are in fact implicitly disclosed in document D1.

5.3.3 With respect to feature M1.4, paragraph [0022] of D1 actually discloses that "[i]ndustrial devices 208 and 210 can include [...] industrial controllers (e.g., programmable logic controllers [...])". Thus, feature M1.4 is also anticipated by document D1. In that regard, the board is not convinced by the proprietor's argument that, for the mere reason that the "controller" was not mentioned in certain passages of document D1, it would be evident that the respective embodiments dispensed with a "controller" (see also the considerations set out in point 5.3.5 below).

5.3.4 Having regard to feature M1.4.1, the board concurs with the parties that the passage cited by the opposition division is obviously erroneous. However, the board considers that this feature compellingly follows from the preceding features and is thus necessarily known from document D1 for the same reasons as for those preceding features.

5.3.5 As to feature M1.5, the board is not convinced by the proprietor's argument that paragraph [0026] of D1 discloses the case where the control was performed by a cloud-based control application and not by an "industrial controller" on-site. Rather, the board concurs with the opponent that the cloud-based control is performed in addition to having an "industrial controller" on-site. A full replacement of the latter is not derivable from paragraph [0026] of D1.

5.3.6 With respect to feature M1.5.1, the board concurs with the opponent that document D1 implicitly discloses the claimed "cloud variables" (see the reasoning set out in point 5.3.2 above).

5.3.7 As to the first aspect of feature M1.5.1.1, the reasoning set out in point 5.3.2 above applies likewise. As to its second aspect, the board concurs with the opponent that document D1 discloses that the "cloud agent" is indeed located within the "industrial controller". Document D1 explicitly discloses "integrated cloud agents" (see paragraph [0025]). As already argued above, that these agents are "integrated" in the "industrial devices" is to be understood such that they are integrated with the "industrial controllers", since D1 uses these terms interchangeably. In that regard, the board disagrees with the opposition division that the embodiment featuring "integrated cloud agents" in paragraph [0025] of D1 was disclosed as not having a "user-defined control program".

5.3.8 Having regard to feature M1.5.2, the board concurs with the opponent that paragraph [0026] explicitly discloses that data communications originating from the cloud are performed via the "cloud agent". The board holds that the formulation "directly to a controller" (see paragraph [0020], lines 52 and 53) may only be understood, in its context, as meaning that the variables are not provided via the "user's client device". The board is thus not convinced by the proprietor's argument that paragraph [0020] discloses "bypassing" the cloud agent.

5.3.9 Feature M1.5.3 comprises two aspects, the "cloud constructs" aspect and the "reload" aspect. On the one hand, the board concurs with the opponent that D1 implicitly discloses "cloud constructs", as already discussed in point 5.3.2 above. On the other hand, as already addressed in point 5.3.8 above, document D1 in fact discloses in paragraph [0020] that the updated optimised variables are provided to the controller (denoted "user-defined control program" in claim 1). Contrary to the proprietor's view, the board notes that feature M1.5.3 fails to recite the aspect that the variables were reloaded from the "cloud agent". Therefore, the respective argument cannot persuade the board either.

5.3.10 Feature M1.6 comprises two aspects. On the one hand, the aspect of the "cloud constructs" is implicitly disclosed by document D1 (see points 5.3.9 and 5.3.2 above). On the other hand, as to the aspect of requesting the updated optimised cloud variables at runtime, the board agrees with the parties and the opposition division that this is indeed not known from document D1.

5.3.11 Hence, the difference between the subject-matter of claim 1 and the disclosure of document D1 resides only in that the "cloud constructs" are supposed to request the "updated optimised cloud variables" on runtime according to feature M1.6.

5.3.12 The proprietor argued that the major technical effect of the invention was the decoupling between the

"user-defined control program" and the optimisation by the "cloud-based applications". More specifically, the distinguishing feature caused the effect of increasing the frequency of updating the local control parameters.

5.3.13 However, the board holds that the first of these alleged effects is not credibly derivable from the above distinguishing feature. The same applies to the technical effect invoked by the opponent ("enabling fast use of updated variables once they are present").

5.3.14 With respect to the second effect invoked by the proprietor, document D2 in fact discloses at page 3, last paragraph, fourth sentence: "Der Zugriff auf diese

IoT-Funktionen kann [...] direkt aus dem Steuerungsprogramm heraus erfolgen". In this context, IoT products are described as exchanging process data with cloud services using publish/subscribe-based protocols (see the same paragraph, second sentence). Hence, document D2 discloses both aspects of the distinguishing feature, namely the "request" and the "on runtime" aspects. The board holds that, when trying to implement the system of document D1, the skilled person would have indeed consulted documents like document D2. When confronted with the above objective technical problem and depending on the circumstances, the skilled person would have readily applied the teaching of document D2 to the system of document D1. This way, they would have directly arrived at the distinguishing feature without employing any inventive skill.

5.3.15 But even if the skilled person would not have considered combining the teachings of documents D1 and D2, the subject-matter of claim 1 would still have been obvious in view of document D1 taken alone.

On the one hand, "requesting" variables represents an obvious alternative to having these variables "provided", as taught in paragraph [0020] of document D1. On the other hand, doing so "on runtime" constitutes an obvious solution to the problem of "how to allow for a speedy use of calculated variables". Since the skilled person would have readily foreseen these features when implementing the system described in document D1, depending on the practical circumstances, they would have readily arrived at the subject-matter of claim 1 without employing any inventive skill.

5.3.16 Consequently, the subject-matter of claim 1 of the main request is not inventive over the disclosure of document D1 in combination with either the teaching of document D2 or with the skilled person's common general knowledge.

5.4 In view of the above, the main request is not allowable under Article 56 EPC.

6. First auxiliary request

6.1 The board concurs with the opposition division that the feature of granted claim 2 has already been discussed in the context of feature M1.5.1.1 of granted claim 1. Therefore, the subject-matter of claim 1 of the first auxiliary request is not inventive for the same reasons as for claim 1 of the main request.

6.2 Hence, the first auxiliary request is not allowable under Article 56 EPC either.

7. Second auxiliary request

7.1 The board concurs with the opposition division that the added feature in claim 1 of the second auxiliary request ("user-defined program is configured as a programmable logic controller program") is already known from paragraph [0022] of document D1. As argued by the opponent, it is disclosed therein that the "industrial controllers" may indeed be "programmable logic controllers". It immediately follows therefrom (and - as the board notes - from lines 39 and 40 of paragraph [0023] of D1) that the programs run by these "industrial controllers" are in fact "PLC programs".

7.2 Therefore, the subject-matter of claim 1 differs from the disclosure of document D1 in the same features as claim 1 of the main request. The subject-matter of claim 1 is thus not inventive for the same reasons as for claim 1 of the main request.

7.3 In view of the above, the second auxiliary request is not allowable under Article 56 EPC either.

8. Third auxiliary request

8.1 It is common ground that the added feature in claim 1 of the third auxiliary request, i.e. that the industrial automation system is configured in a programming language and the cloud variables are defined in the programming language of the industrial automation system, is not anticipated by the disclosure of document D1 and thus constitutes an additional distinguishing feature.

8.2 The board, however, concurs with the opposition division that the added feature represents an obvious design choice. More specifically, it causes the technical effect of providing a compatible declaration for the variables. When implementing the system of document D1, the skilled person would have readily selected, out of a limited number of compatible options, the programming language of the industrial automation system for the configuration of the system as well as the definition of the variables. By doing so, the skilled person would have arrived at the additional distinguishing feature in an obvious way.

8.3 The board is not convinced by the proprietor's argument that the added feature caused the technical effect that the update of the cloud variables was performed in line with the execution of the "user-defined control program". Notably, the board judges that what is claimed does in fact not specify a synchronisation of the updating of the cloud variables with the execution of the user-defined control program. Rather, the added feature simply causes the technical effect of providing a compatible declaration for the variables, as indicated above.

8.4 In view of the above, the third auxiliary request is likewise not allowable under Article 56 EPC.

9. Fourth auxiliary request

9.1 The board concurs with the opposition division that the added feature in claim 1 of the fourth auxiliary request, i.e. that the cloud agent includes a unique identity number for identifying the user-defined control program, for which the cloud variables are collected and on which the cloud variables are to be updated, is known at least from paragraph [0035] of document D1. This paragraph namely discloses "boiler identification data", which is a "unique identity number". Since claim 1 specifies a single "user-defined control program" for the claimed "industrial automation device" (in D1: "boiler"), an identifier for the "industrial automation device" is already sufficient for uniquely identifying the "user-defined control program". Since the "boiler identification data" is part of the data transmitted to the cloud, it is also available at the cloud agent.

9.2 Hence, the subject-matter of present claim 1 differs from the disclosure of document D1 in the same features as claim 1 of the main request. The subject-matter of present claim 1 is thus not inventive for the same reasons as for claim 1 of the main request.

9.3 In view of the above, the fourth auxiliary request is not allowable under Article 56 EPC, too.

Order

For these reasons it is decided that:

1. The request for a referral of a question to the

Enlarged Board of Appeal is refused.

2. The appeal is dismissed.