T 0248/22 (Data structures used for remotely monitoring railroad devices / Alstom) 15-11-2023

Reasons for the Decision

1. The current patent concerns remotely monitoring railroad devices using data structures corresponding to each of the railroad devices. The railroad devices are located within a railroad infrastructure and populate the corresponding data structure with data representing a state of the railroad device.

2. Admissibility of the opponent's appeal (Rule 99(2) EPC)

In its response of 16 August 2022 to the opponent's grounds of appeal (page 2), the proprietor alleged that the opponent's appeal was not admissible since it did not relate to the reasons of the decision of the opposition division.

The board asserts that the opponent's grounds of appeal of 11 April 2022 contain arguments why the subject-matter of claim 1 of auxiliary request 2 was not inventive in view of document D1 and the common general knowledge of the skilled person. These arguments clearly relate to the appealed decision, which based its conclusion that the subject-matter of claim 1 of auxiliary request 2 was inventive, inter alia, on document D1 and the common general knowledge of the skilled person.

Therefore, the opponent's appeal is admissible.

3. Main request

The main request cannot be allowed for procedural reasons alone (see Facts and Submissions, point IX above). The request is nevertheless examined on its substance in view of the assessment of auxiliary requests 2 to 5.

3.1 Novelty (Article 54(1) EPC)

3.1.1 In the decision under appeal, the opposition division concluded that the difference between the subject-matter of claim 1 and that of document D1 resided in feature M1.5.1.

3.1.2 The proprietor argued that document D1 did not disclose whether the messages ("Meldungen") used a data structure populated with data representing a state of the wayside controller railroad device. Therefore, features M1.2 and M1.3 were not directly and unambiguously disclosed by document D1.

The opponent countered that it was evident from document D1, page 12, section 2.1 that the messages were sent from the interlocking component ("Stellwerkskomponente") to the diagnostic station ("Diagnose-Station"). Since the claim did not further specify the data structure, feature M1.2 was unambiguously derivable from that passage. The same applied to feature M1.3 since the claimed "network management protocol" was not further specified.

The board notes that features M1.2 and M1.3 of claim 1 do not specify any features of the "data structure" or the "network management protocol". Therefore, the proprietor's arguments are not convincing.

3.1.3 The proprietor submitted that feature M1.4 was not disclosed in document D1 since D1 mentioned storing data locally.

The opponent referred to Figure 2 of document D1. This figure showed that one of the diagnostic stations is connected to interlocking system 2 ("Stellwerk 2") and interlocking system 3 and thus has to be remote from at least one of these interlocking systems.

The board notes that Figure 2 indeed mentions that the diagnostic station is local. However, as there is a central service information computer ("Serviceinformations-Rechner"), this may well be understood as describing these stations as being decentralised. This becomes evident from the fact that one diagnostic station shown in Figure 2 is depicted as having connections with two different interlocking systems. This rules out the possibility of the diagnostic station being local to both of them. The board thus considers that feature M1.4 is disclosed in document D1.

3.1.4 Moreover, the proprietor brought forward that feature M1.6 was not disclosed in document D1. An alert could not be generated since the diagnostic component ("Diagnose-Komponente") was disclosed as having no user interface.

The opponent countered that the diagnostic station in Figure 2 was shown as having a user interface. Moreover, SMS alerts were disclosed in document D1 (page 14, middle column).

The board holds that the opponent's arguments are convincing. It further notes that the opposition division cited page 13, left column, second paragraph of document D1 as disclosing feature M1.6. The board holds that this passage indeed discloses that the data is analysed ("Bezeichnung der Störung") and an alert is provided ("zeigt ... Störungsliste ... an").

Hence, feature M1.6 is disclosed in document D1.

3.1.5 Finally, the proprietor pointed out that, according to the decision under appeal, the claimed computing device was mapped to the diagnostic stations of document D1. In contrast, the opponent had argued that the service information computer of D1 corresponded to the claimed computing device.

The opponent submitted that, according to document D1, the diagnostic station and service information computer could be combined in a single device (see page 12, right-hand column, bottom third).

The board notes that the passage cited by the opponent discloses that, in the standard configuration, the central service information component is executed locally on the diagnostic station. The board thus holds that the argument of the opponent is not in contradiction with the decision under appeal.

3.1.6 In view of the above, the board holds that the subject-matter of claim 1 differs from the disclosure of document D1 by the feature identified by the opposition division, i.e. feature M1.5.1.

3.2 Inventive step (Article 56 EPC)

3.2.1 In the decision under appeal, the opposition division held that the difference had the technical effect that more detailed information about any technical problem or disturbance reported from the wayside controller railroad device could be obtained, this allowing identification of the underlying cause of the problem. The objective technical problem to be solved could thus be considered the increasing of the efficiency of maintenance and repair of railroad equipment. Since the equipment mentioned in feature M1.5.1 was commonly encountered along any railway track, the opposition division held that it would have been obvious to the skilled person to incorporate its operating parameters in the system known from document D1.

3.2.2 The proprietor argued that document D1 did not provide any suggestion to consider the operating parameters, and thus feature M1.5.1 was not obvious.

3.2.3 The opponent pointed out that document D1 related to diagnosing any railway equipment problem and was not limited to specific problems. In the discussion about Article 100(b) EPC, it had even been acknowledged by the proprietor that the individual aspects of feature M1.5.1 were commonly known. The skilled person would thus have arrived at feature M1.5.1 without using inventive skill.

3.2.4 The board notes that, in the decision under appeal, the opposition division concluded that claim 1 met the requirements of Article 100(b) EPC. This was due to the fact that it was immediately clear to the skilled person that "a deteriorating ballast condition, a signal crossing warning time out of range, and an intermittent track circuit" were undesirable states of railroad equipment. The opposition division could only have come to its conclusion if it also considered it to be commonly known how the wayside controllers determine these operating parameters.

3.2.5 The board therefore concurs with the opposition division that, starting from the system of document D1, the skilled person would have arrived at the subject-matter of claim 1 by using this common knowledge without employing any inventive skill.

3.3 In view of the above, the main request is not allowable on its substance.

4. Auxiliary request 1

Auxiliary request 1 cannot be allowed for procedural reasons alone (see Facts and Submissions, point IX above). The request is nevertheless examined on its substance in view of the assessment of auxiliary requests 2 to 5.

4.1 Inventive step (Article 56 EPC)

4.1.1 In the decision under appeal, the opposition division held that the reasoning provided for the main request applied also to auxiliary request 1. Thus, the subject-matter of claim 1 of auxiliary request 1 did not involve an inventive step either for the same reasons.

4.1.2 Both the proprietor and the opponent referred to their arguments provided for the main request.

4.1.3 The board concurs with the opposition division that the subject-matter of claim 1 of auxiliary request 1 is not inventive over document D1 in combination with common knowledge for the reasons provided above for the main request. The reasoning provided on the parties' arguments is not affected by the amendments.

4.2 Hence, auxiliary request 1 is not allowable on its substance.

5. Auxiliary request 2

5.1 Inventive step (Article 56 EPC)

5.2 In the decision under appeal, the opposition division held that the features added to claim 1 constituted additional distinguishing features over the disclosure of document D1. In view of the same objective technical problem as for the main request, these features were considered not to be obvious.

5.3 The opponent acknowledged that the added features constituted additional distinguishing features. It was then, however, argued that the objective technical problem had to be formulated as providing an enhanced diagnosis method having continuously updated information. Since updating a database constituted a common practice for the skilled person, the added features were also not based on inventive activity.

5.4 The proprietor submitted that the added features (granted claim 7) enabled pro-active diagnostics of the wayside controller railroad devices. Since document D1 implied that the messages were only actively sent by the interlocking components and not polled, the added features were inventive over document D1.

5.5 The board notes that the added features relate to polling (querying) the devices and receiving updated information in return. The board concurs with the opponent that updating data in a database constitutes a routine task of the skilled person and is thus not based on inventive activity. The skilled person knows that there are only two options as to which device initiates the transmission of the updated information - either the sender or the receiver - and that these two options are well known to the skilled person. Selecting one out of two possible options does not require inventive skill.

5.6 Therefore, the subject-matter of claim 1 of auxiliary request 2 is not inventive.

5.7 In view of the above, auxiliary request 2 is not allowable.

6. Auxiliary request 3

The board concurs with the parties that the same considerations apply for auxiliary request 3 as for auxiliary request 2.

Therefore, auxiliary request 3 is not allowable for the same reasons as auxiliary request 2.

7. Auxiliary requests 4 and 5

7.1 Auxiliary requests 4 and 5 were filed during the proceedings before the opposition division but not discussed as the opposition division decided to maintain the patent in accordance with auxiliary request 2.

7.2 The proprietor argued that the periodical polling of the data enabled pro-active collection of the status of the wayside controller railroad device.

7.3 The opponent submitted that polling periodically constituted a common measure for the skilled person.

7.4 The board is not convinced by the proprietor's argument. The "pro-active collection of the status" is already achieved by polling, no matter whether periodic or not. Furthermore, the board notes that there are only two options for determining when to poll a device: time based (i.e. periodic) or event based. These are well known to the skilled person, who would thus have selected one of these options depending on the circumstances, without employing any inventive skill.

7.5 Therefore, the subject-matter of claim 1 of each of auxiliary requests 4 and 5 is not inventive.

7.6 In view of these considerations and the reasoning on auxiliary request 2, auxiliary requests 4 and 5 are not allowable.

8. Auxiliary requests 6 to 10

8.1 The board asserts that these are amended requests filed for the first time with the grounds of appeal. These requests had not been previously presented in the proceedings. Therefore, their admission is at the discretion of the board (Article 12(4) RPBA).

8.2 The proprietor brought forward that these requests were filed in response to the opponent's objection against the "a deteriorating ballast condition" feature. As this objection pursuant to Article 123(2) EPC was presented for the first time during the oral proceedings before the opposition division, the proprietor argues that these requests could not have been submitted earlier.

8.3 When exercising its discretion whether to admit an amendment to a party's case, the board has to consider whether the amendment is suitable for addressing the objections raised (Article 12(4) RPBA). In the current case, the proprietor argued that the amendments remedied an objection which is not part of the decision under appeal or the appeal proceedings. Any reasons why an amendment overcomes an unraised objection do not constitute valid reasons for admitting an amended request in view of Article 12(4) RPBA, second paragraph.

8.4 Consequently, in the absence of any valid reasons for admitting auxiliary requests 6 to 10, the board decides not to admit them into these proceedings.

9. Hence, none of the proprietor's requests is admissible and allowable.