Cloud computing 'in real time': inventive?
Does a fictional expert routinely engage in a selective choice of cloud services? In Cloud Computing v Honeywell before the EPO Board of Appeal, the focus was on cloud computing and the term 'in real time'. At issue was an invention for a selective application of cloud computing technology to an industrial automation system.
The European patent application (No. 10764812.3, published as WO 2010/120440 A2) had been rejected by the Examining Office because it lacked inventive steps, and patent applicant Honeywell (USA) appealed against this. Since June 08, 2022, the decision of the Board of Appeal is online (T 1133/15 (Cloud computing/HONEYWELL)).
Appellant Honeywell's invention uses a hybrid approach of cloud services and local services for the claimed industrial automation system. The automation system selectively moves data and processes to the cloud - depending on whether or not that data or process is needed to instruct or control devices in the system. For this purpose, there is an ESB (Enterprise Service Bus), a software architecture with which service requests are forwarded to the corresponding service provider, either locally or in the cloud.
It was undisputed that this invention differed from a conventional industrial automation system by the features related to cloud computing. However, the patent application had been rejected by the EPO because it lacked inventive steps (Article 56 EPC) over the D1 and the D2 counterparts.
The question was thus: Is this hybrid approach using a mixture of cloud services and local services inventive? Or would a skilled person have come up with this solution as well - after all, cloud services were available and known on priority day?
Term 'real-time': dynamic or not?
Was the decision whether to move a process to the cloud to be seen as dynamic, i.e. 'on the fly'? The complainant argued along these lines, stating that the determination was based on dynamic criteria such as real-time availability of processing and storage resources.
Board of Appeal decision.
But the EPO's board of appeal rejected this. This was because the patent in dispute specified whether a particular process had to be executed in real-time or not. The term 'real time' therefore referred to the function performed by the process. However, the patent claim does not define when the determination is made, the board noted. And any technically reasonable interpretation covered by a patent claim can be used to assess inventive steps.
Thus, according to the board, the fictitious person skilled in the art would have done the following: he would consider transferring industrial automation system data and processes to the cloud to take advantage of cloud computing. At the same time, he would recognize that critical processes should not be performed in the cloud, such as controlling the actual mechanical systems in a factory. The skilled person would therefore use cloud computing for non-time-critical processes such as the computationally intensive training and simulation processes.
The Board of Appeal relied on decision T 520/13 (Advertisement selection/MICROSOFT), where an analogous sharing of computations between a client and a server was considered an obvious trade-off. Lower latency or more memory and decentralized access? This was seen by the Board in T 520/13 as 'the kind of trade-off that the skilled person routinely grapples with' - and confirmed this view with the current recent Cloud Computing/HONEYWELL decision.
The board also rejected the use of an ESB as an argument for inventive steps. Using a software architecture such as ESB to integrate local services and cloud services into the user interface of the industrial automation system had nothing to do with the efficiency of cloud computing over local computing, the Board ruled. Rather, it dealt with a user interface integration problem. The "service bus" in claim 1 was a consequence of the decision whether or not to outsource data and processes to the computer cloud - but had no real synergy with that decision.
For these reasons, the appeal was dismissed in its entirety (T 1133/15 (Cloud computing/HONEYWELL)).
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