T 1133/15 (Cloud computing/HONEYWELL) 30-11-2021

Reasons for the Decision

1. Background

1.1 The invention concerns cloud computing in an industrial automation and manufacturing system (paragraph [0001] of the published application).

1.2 Cloud computing allows for the offloading of data storage and data processing from a local computer environment to a server cloud. This has the advantage that resources can be shared at a low cost (paragraph [0002]). However, cloud computing also has drawbacks. Therefore, some tasks are more efficiently performed locally (paragraphs [0022] to [0024]).

1.3 The invention provides a hybrid approach in which the claimed industrial automation system uses a mix of cloud services and local services (paragraphs [0022] and [0027]). The system selectively offloads data and processes to the cloud based on whether or not those data or processes are needed for the instruction or control of devices in the system. For example, the programming of an automated system to drill into a substance for a specific period of time is best performed locally (paragraph [0024]). Conversely, computationally intensive tasks which do not instruct or control manufacturing devices, such as computer simulations, may be advantageously preformed in the cloud (paragraph [0025]).

1.4 The shared cloud services appear as local services to the user of the industrial automation system. To that end, there is a "service bus" which redirects requests for a service to the appropriate service provider, either locally, or in the cloud (paragraph [0021]).

2. Admissibility of the main request and the first and fourth auxiliary requests

2.1 The main request and the first and fourth auxiliary requests were filed in reply to the Board's communication under Rule 100(2) EPC, i.e. after the filing of the grounds of appeal.

2.2 According to Article 13(1) RPBA 2020, which applies to the present appeal (Article 25 RPBA 2020), amendments filed after the grounds of appeal may be admitted only at the Board's discretion. The Board shall exercise its discretion in view of, inter alia, the current state of the proceedings, the suitability of the amendment to resolve the issues which were raised by the Board, whether the amendment is detrimental to procedural economy, and, in the case of an amendment to the patent application, whether the appellant has demonstrated that any such amendment, prima facie, overcomes the issues raised by the Board and does not give rise to new objections.

2.3 The main and first auxiliary request are identical to the main and first auxiliary request rejected by the examining division in the decision under appeal. The subject-matter claimed in the fourth auxiliary request essentially corresponds to the subject-matter of the first auxiliary request with minor amendments intended to simplify the claim. None of those requests contains the feature defining the "service bus" and are therefore broader than the requests filed with the grounds of appeal. Furthermore, in claim 1, the criteria for deciding whether to offload data and processes to the cloud are based on a determination of whether the data or processes are required for at least one "real-time process for instruction and/or control".

2.4 The amendments sought by the appellant do not address the objection of lack of inventive step in the Board's communication. They furthermore reintroduce the issue of lack of clarity relating to the term "real-time process" in the decision under appeal. This ground had been overcome by the amendments filed with the grounds of appeal. Therefore, admitting the main request and the first and fourth auxiliary requests at this stage of the appeal proceedings would be detrimental to procedural economy, since the Board would have to consider an issue that was previously moot. These are reasons for not admitting the requests.

2.5 The appellant argued that the statement "The Appellant appeals the Decision of the Examining Division of 14 November 2014 to refuse the above application" in the grounds of appeal indicated that the decision was appealed also on the basis of the refused requests. Furthermore, since the purpose of the appeal was primarily a review of the first-instance decision, and since the amendments did not, in the appellant's view, cause a material change, the main and first auxiliary request should be admitted. The fourth auxiliary request should be admitted for the same reasons. The appellant also advanced other circumstances, namely a change of representative, and an error in the appealed decision regarding clarity.

2.6 The Board is not persuaded by the appellant's arguments.

The grounds of appeal clearly identify the present second auxiliary request as the main request. There is no mention of the refused requests and no indication that those requests are maintained on appeal.

The appellant's argument to the effect that the refused requests are automatically part of the appeal is not convincing. The appeal proceedings are based on the notice of appeal and statement of grounds of appeal filed pursuant to Article 108 EPC (Article 12(4) in connection with Article 12(2) RPBA 2007). The statement of grounds of appeal shall contain a party's complete case (Article 12(4) in connection with Article 12(2) RPBA 2007). If the appellant chooses to address a decision ground by amending the claims, then that is the appellant's appeal case. Cancelling the amendments at a later stage of the appeal proceedings is an amendment to the appeal case which may be admitted only at the discretion of the Board (Article 13(1) PRBA 2020).

Furthermore, none of the additional circumstances argued by the appellant justifies the amendment to the case. A change of representative does not on its own justify the late filing of requests (see Case Law of the Boards of Appeal 9th ed. 2019, Chapter V-A, Section 4.8.2). The perceived error in the appealed decision on the point of clarity could have been addressed in the grounds of appeal. Indeed, there was nothing preventing the appellant from doing so.

2.7 For these reasons, the Board holds the main and first and fourth auxiliary requests as inadmissible.

3. Second auxiliary request

3.1 It is common ground that the invention in claim 1 of the second auxiliary request distinguishes itself from a conventional industrial automation and manufacturing control system by the features relating to cloud computing including the selective offloading of data and processes from the local system to a computing cloud and the service bus for redirecting requests for services and for causing the cloud services to appear as local services.

3.2 During the appeal proceedings, it was discussed whether the determination of whether a process was to be offloaded to the cloud happened dynamically, on the fly, or whether the claim covered a determination based on predetermined criteria, for example the type of data or process.

The appellant argued that the determination was based on dynamic criteria such as the real time availability of processing and storage resources.

The Board however does not see any support in the application for such a dynamic distribution of processes. In paragraph [0027], it is determined whether a specific process is required to be performed in real time or non-real time. The Board reads "real time" in paragraph [0027] as referring to the function carried out by the process and not to the determination itself. In paragraph [0024], real time functions include functions that instruct or control other devices, such as the actual mechanical systems used in a factory. Non-real time functions include functions that can be used to form or support the real time functions, for example simulations of the products created by the real time functions (paragraph [0025]). Thus, the disclosure in the application supports a determination based on predetermined criteria relating to the type of process rather than a determination based on dynamic criteria.

Furthermore, claim 1 covers a determination based on predetermined criteria. The criteria for offloading data and processes to the cloud are "based upon a determination of whether data or processes are required for at least one process for instruction and/or control of other devices in one or more of the industrial automation system". The claim does not define when the determination is made and thus does not exclude that it is done, in advance, based on the type of process e.g. drilling or simulation.

If a claim covers a certain interpretation, it does not matter that the claim also covers a different interpretation. Any technically reasonable interpretation that falls under the terms of the claim may be used for the purpose of assessing inventive step.

3.3 In the Board's view, the skilled person would consider transferring data and processes of the industrial automation system to the cloud in order to obtain the benefits of cloud computing. As shown in the overview papers D1 and D2, cloud services were widely available at the priority date and their advantages were well known.

As the appellant argued, an alternative to cloud computing would be to provide the required resources locally. However, this does not make cloud computing a less obvious choice. Indeed, there can be more than one obvious solution to a problem.

Having decided to use cloud computing, the skilled person would have to provide a workable implementation. It is clear that not every function in a computer system can and should be offloaded to the cloud. For example, D1 states that cloud service can suffer from latency and bandwidth related issues associated with remote application (page 25, left-hand column, last paragraph). In addition to the latency issue, D2 mentions reliability, i.e. that the cloud service may not always be available (page 19, heading "Reliability"), or the Internet connection might not be reliable enough (page 19, heading "Other concerns"). In view of those well known issues, the skilled person would recognise that critical processes, such as the control of the actual mechanical systems in a factory, should not be performed in the cloud. That is not to say that skilled person would dismiss cloud computing entirely. The skilled person would still use cloud computing for non-time critical processes.

3.4 In any case, all of the parameters latency, reliability, and data storage and processing requirements are subject to well known trade-offs. The application offers no surprising effects for the choice made.

In T 520/13 (Advertisement selection/MICROSOFT) an analogous division of computations between a client and a server was found to be an obvious trade-off.

Paragraph 3.4 of the decision states:

"...the question of whether to process data locally or centrally is the sort of trade-off that the skilled person routinely deals with. It is well known that local processing reduces latency, but requires more storage space and processing capabilities in the client device. Conversely, central processing has more latency but allows for a relatively simple client."

T 520/13 is not cited as prior art against the claimed invention. It is cited as an illustration of how Boards tend to judge issues of trade-offs.

3.5 The "service bus" in claim 1 is a consequence of, but has no real synergy with the decision of whether or not to offload data and processes to the computing cloud. Indeed, it has nothing to do with the efficiency of cloud computing versus local computing, but rather addresses a problem of user interface integration. The service bus redirects requests for a service to the appropriate service provider and makes cloud services appear as local services to the user. In other words, the service bus provides an abstraction of the distributed processing system to the user. Such abstractions were common in distributed systems, such as distributed file systems. Furthermore, "Enterprise Service Buses" (ESBs) were well known at the priority date. ESBs integrated different services in a distributed computer system in the manner claimed. In the Board's view, it would have been obvious for the skilled person to use this type of software architecture in order to integrate the local services and the cloud services in the user interface of the industrial automation system.

3.6 For these reasons, the Board judges that the subject-matter of claim 1 of the second auxiliary request lacks an inventive step (Article 56 EPC).

4. The third auxiliary request

4.1 Claim 1 of the third auxiliary request further specifies that the first process that instructs/or controls other devices is continuously available and that a second process that trains the real time processes or simulates products created using the first process are offloaded to the cloud.

4.2 Training and simulation processes are exactly the kind of computation intensive, non-time critical processes that could advantageously be performed in the cloud. The skilled person knew this. He would, therefore, have offloaded the second process to the cloud.

4.3 For these reasons, the third auxiliary request does not involve an inventive step (Article 56 EPC).