9.2.18 Weather-related algorithms

In T 1798/13 the invention concerned forecasting the value of a weather-based structured financial product. The values of these products were based on specific weather measures, such as temperature, precipitation, hours of sunshine, heating degree days, cooling degree days or wind speed. The board agreed with the appellant that a system for weather forecasting, for example, comprising sensors for measuring specific weather data, had technical character. The invention, however, relied on the use of already measured weather data. It could be argued that this (raw) weather data represented measurements about the physical world and was therefore also technical. The situation would thus be similar to that in T 2079/10, which considered that physical parameters represented technical data and that the choice of which physical parameters were to be measured fell within the competence of the technical skilled person.

In T 2079/10, however, the invention was seen to lie in the improvement of the measurement technique itself, which involved technical considerations about the sensors and their positions. In the case in hand, the measurements themselves did not play a role, the improvement was in the processing of data to provide a better weather forecast. The applicant's second argument was essentially that an improvement in the weather data by calculating and further processing it was also technical. In the board's view this led to the key issue in this case, namely whether improving the accuracy of given data of a weather forecast was technical. If it was not, then the details of the algorithm, the "mathematics" as the division put it, did not help. The board held that it was not. The "weather" was not a technical system that the skilled person could improve, or even simulate with the purpose of trying to improve it. It was a physical system that could be modelled in the sense of showing how it works. This kind of modelling was rather a discovery or a scientific theory, both of which were excluded under Art. 52(2)(a) EPC and thus did not contribute to the technical character of the invention (see also T 2331/10). In T 2079/10 the board held that a purely non-technical interpretation of the claim's subject-matter was not possible and that it therefore had technical character.

In T 1234/17 the board essentially held that it was not enough that an algorithm makes use of a technical quantity in the form of a measured physical parameter (weather data). What matters is whether the algorithm reflects any additional technical considerations about the parameter, such as its measurement. In that case there were none, which contrasted with the matter in T 2079/10.