EP 3 474 205 A1 relates to the energy efficient delivery of mail items.
Brief outline of the case
The application was refused for lack of IS and lack of clarity.
The board confirmed the refusal.
In the present entry we will concentrate on the MR.
Further prior art cited by the board
Since D1 to D3 cited in the examination proceedings disclose few details of claim 1 and these documents appeared unsuitable as CPA, the board referred to more suitable citations from proceedings relating to family members of the present application.
D4 cited in the Chinese grant proceedings describes a method for determining optimal delivery routes and vehicles based on historical data such as delivery routes, fuel consumption, traffic information, etc..
D4 thus has most of the features in common with the invention.
D4 only does not disclose that the energy consumption of a delivery route is calculated in advance, but the total cost of delivery, which usually includes energy costs.
D5, also from the Chinese grant procedure, teaches to improve energy efficiency by calculating the energy consumption of a route. In particular, D5 also teaches to adapt the energy consumption to the nature of the route, such as gradients and road surface.
It was undisputed that D4 is the CPA. D5 is used to assess IS of the ARs.
The difference between claim 1 and the disclosure of D4 is therefore only that, as a cost factor of the total cost also, the energy requirement is determined.
The applicant’s point of view
According to the applicant, the effect of this difference is that the energy requirement can be minimised by selecting the least energy-consuming delivery route from a large number of possible delivery routes.
The applicant argued that D4 is primarily focussed on business purposes. As an alternative solution to the proposed solution, a “reverse auction”, i.e. the customer selects from several offers submitted in advance by transport companies, is proposed.
This economic solution would lead the skilled person away from the technical solution proposed in claim 1, i.e. a minimisation of energy consumption.
The board’s decision on IS
In the context of the problem-solution approach, the skilled person must usually first work out the teaching of the CPA.
For the board, if the skilled person arrives at the claimed solution simply by working out this teaching, the working out of the teaching of the CPA can be regarded as the OTP.
Applied to the present case, D4 leaves open how the total costs are determined. Only the concrete way of determining the total costs in D4 is regarded has the effect of the distinguishing feature. Thus, it follows that the OTP is to carry out the teaching of D4.
The skilled person would automatically arrive at the subject matter of claim 1 when working out the teaching of D4. D4 teaches the calculation of different routing options and route segments as well as their costs and how to minimise the costs.
When calculating the cost of the various routing options, the energy consumption must necessarily be determined in order to determine the cost share of energy/fuel. Consequently, D4 alone teaches the determination of energy consumption if the skilled person is to work out the procedure described in D4 and minimise the total costs. Under these conditions, the skilled person must, among other things, necessarily also calculate and minimise the energy costs.
The board was also of the opinion that the skilled person, would necessarily already arrive at the solution according to the claim by working out the teaching of D4. The fact that a “reverse auction” is proposed as an alternative solution in D4 was therefore irrelevant.
The board was further of the opinion that the determination and reduction of energy costs and, in particular, the selection of a route with low energy requirements over a route with high energy requirements is part of CGK.
D5 demonstrates this CGK. D5 teaches, among other things, how to determine and minimise energy consumption and emissions when calculating a delivery route.
Claim 1 of the MR thus lacks IS.
Comments
Further prior art of the board
By virtue of Art 111(1), a board is perfectly entitled to bring in new prior art in appeal upon examination.
It is however not common that the board goes as far as to look what has happened during examination of family members, and certainly not from the Chinese procedure.
By the way, a patent has been granted in the US=(US11514392).
A new definition of the OTP
The present board has added a new feature to the well-known PSA: simply carrying out the teaching of the CPA represents the OTP, without looking really at the difference and the effect of the difference.
It will have to be seen if this decision is a one off and if other boards will adopt it as well.
Lack of IS
In T 1806/20, commented in the present blog, it was held that delaying the delivery of rain-sensitive parcels until it stops raining is not technical.
In the present case, minimising the costs by choosing a route with low energy requirements over a route with high energy requirements, does not seem technical either. And it does not appear, in the breadth of the claim, that it is inventive, although plenty of technical means are used.
T 1737/21
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