T 1684/16 - Screening for polymorphs

Key points

• Polymorphs are commercially important. Typically, medically active molecules can exist in different solid-state forms (crystal forms) which can have different properties, such as one polymorph having better storage stability (hence, the differences are typically not in the basic medical activity). A patent on a polymorph can be used effectively to extend the patent term because for regulatory reasons, generic companies can not easily use a different polymorph (e.g. “pharmaceutical polymorphs provide an excellent way for a company to further protect a small molecule drug in order to recoup the billions of dollars that go into research and development, thereby enabling further research and development” (link, emphasis added).
• The big obstacle to getting a patent for a polymorph is as of yet T 777/08 (Atorvastatin) holding that as of 1995, screening for polymorphism was routine in the art such that “in the absence of any unexpected property, the mere provision of a crystalline form of a known pharmaceutically active compound cannot be regarded as involving an inventive step”. 
• The present Board: “The fact that the skilled person is taught in the prior art to investigate polymorphs in order to isolate the crystalline form having the most desirable properties is in itself not necessarily sufficient to consider a specific polymorphic form having a certain desired property obvious”.
• The present Board: “The board acknowledges that, in view of their disclosures, D4, D5 and D7 teach the investigation of polymorphs in order to isolate the crystalline form having the most desirable properties. This in itself is not sufficient to deny inventive step, however. Only if the prior art contains a clear pointer that it is the claimed subject-matter that solves this problem or where it at least creates a reasonable expectation that a suggested investigation will be successful, can inventive step be denied. In this case, however, there is no clear pointer in any of D4, D5 or D7 that it is the specific crystalline Form I as defined in claim 1 that is the most stable form. ”
• The present Board: “the decision in T 777/08 is concerned with the arbitrary selection of any crystalline form and considers it obvious that any arbitrary crystalline form has better filterability and drying characteristics than the corresponding amorphous form. This is entirely different from the present case. The present case is NOT about the selection of any crystalline form but about the selection of one specific crystalline form, namely Form I of bosutinib monohydrate. Furthermore, the selection of this specific crystalline form is not arbitrary, but rather this form has unexpected properties, namely an improved stability when compared with the other crystalline forms in D1, D2 and D3.”
• I note that in T 777/08, the “solution as defined in claim 3 of the main request and claim 1 of the auxiliary request relates to a specific polymorph of atorvastatin” namely “form IV of crystalline atorvastatin hydrate”. The technical effect was " shorter filtration and drying times for form IV compared to the amorphous form". In T 777/08, “the appellant further argued that the presence of an inventive step was supported by the fact that a specific polymorph was being claimed rather than crystalline forms in general. The board does not deny that there may be other options for solving the problem posed []. However, an arbitrary selection from a group of equally suitable candidates cannot be viewed as involving an inventive step”.

EPO T 1684/16 -  link

Reasons for the Decision

4.3 Inventive step in view of D1, D2 or D3 as the closest prior art

4.3.1 As set out above, the compound in claim 1 of the first auxiliary request is a specific crystalline form of bosutinib monohydrate ("Form I"). The patent aims to provide methods for preparing this form and pharmaceutical compositions containing this form for the treatment of pancreatic and prostate cancer (paragraph [0001] of the patent).

4.3.2 Closest prior art

D1, D2 and D3 disclose solid/crystalline forms of bosutinib.

In accordance with the parties' submissions, any of D1, D2 and D3 may be regarded as the closest prior art.

In D1, D2 and D3, the products are described as a "light pink solid" having a melting point of 116-120°C in D1 (example 1), a solid having a melting point of 125-128°C in D2 (example 50) and a crystalline solid in D3 (example 45). There is no indication that the crystalline form is obtained in D1 and D2, and no indication of the specific nature of the crystalline form obtained in D3. The distinguishing feature is thus the specific crystalline form of bosutinib monohydrate ("Form I"), as defined in claim 1.

T 1011/17 - From screening to clinical trials

Key points

• In this opposition appeal about a second medical use claim for a cancer treatment, “ the objective technical problem to be solved was the identification of a further patient subgroup within the imatinib-resistant BcrAbl-positive leukemia patient population that would benefit from treatment with bosutinib.” The solution is essentially identifying patients with the "F317L" mutation as benefitting from treatment with bosutinib. 
• The Board: “it was known that the F317L mutation belonged to a group of prevalent imatinib-resistant mutations. The activity of other second-generation BcrAbl tyrosine kinase inhibitors had already been screened against this group of mutations, including against the F317L mutation”
• “the person skilled in the art seeking to solve the technical problem would have taken a "try-and-see" approach for the routine screening for the activity of bosutinib against further prevalent BcrAbl mutations.”
• “The outcome of such tests was, however, uncertain.”
• “more extensive studies would have been required [i.e. clinical trials] to confirm the efficacy of bosutinib  [found with screening tests?] in human leukemia patients with imatinib-resistant cancer cells carrying the F317L mutation. In this context, the person skilled in the art would no longer have been in a "try-and-see" situation but would have required a reasonable expectation of success as an incentive for moving to further much more extensive and larger studies in a clinical setting.”
• The Board explains that clinical trials are necessary because “especially in cases where genetic mutations are concerned, neither in vitro nor in vivo laboratory models, albeit informative as a first approach, are reliably predictive of actual clinical efficacy since their relevance to mechanisms of resistance in the leukemic cells of patients being treated is unknown []. It was not contested [] that clinical relevance is difficult to predict in this field.”
• In conclusion, claim 1 is inventive because: “At the priority date of the patent in suit, it may have been obvious to include the F317L mutation in routine screening tests with bosutinib, but the outcome of such tests was as yet unknown. Based on the information on file, it cannot be confirmed that the outcome of such tests would have provided an incentive for the skilled person to proceed with more extensive clinical testing specifically in the case of the F317L mutation.”
• I have not checked whether the outcome of the screening tests were presented in the file (as post-published evidence). The phrase “the outcome of such tests would have provided” may possibly indicate that submitting post-filed evidence could change the matter though the first sentence unambiguously refers to the priority date.
• For a different approach, where prior art at the priority date provides motivation for a first test, and the results of that first test (hypothetically) carried out after the priority date leads to a second test, and the outcome of the second test makes the claim obvious, see Actavis v ICOS [2019] USKC 15 (and parallel litigation in other countries). 

EPO T 1011/17 -  link

Reasons for the Decision

1. Admissibility of the appeal

The appeal complies with Articles 106 to 108 EPC and Rule 99 EPC and is therefore admissible.

2. Inventive step

Patent in suit

2.1 The patent in suit explains in its "Background" section (see paragraphs [0002] and [0003]) that imatinib (or "STI-571") was being used in the treatment of chronic myeloid leukemia (also called chronic myelogenous leukemia). The drug blocks the activity of the tyrosine kinase protein BcrAbl, an abnormal protein driving the overproduction of abnormal white blood cells characteristic of leukemia. The aberrantly activated tyrosine kinase BcrAbl is causally associated with chronic myeloid leukemia (CML) and acute lymphocytic leukemia (ALL).

2.2 It was known that many patients eventually developed resistance to imatinib treatment due to mutations in the cancer cells, in particular point mutations in the bcrabl gene (see paragraphs [0002] and [0004]).

2.3 The patent in suit seeks to provide a treatment for imatinib-resistant BcrAbl-positive leukemia by providing a suitable alternative to imatinib (see paragraphs [0004], [0012] and [0014]).

2.4 This is achieved, according to the patent in suit (see paragraph [0001] and independent claims 1 and 7), by using bosutinib or a salt of it to treat patients suffering from BcrAbl-positive leukemia having the 949T>C resistance-associated mutation in the bcrabl gene. According to example 1 of the patent in suit (see paragraph [0046]), the amino acid change which corresponds to the nucleic acid mutation 949T>C is F317L (a phenylalanine [F] at amino acid position 317 mutated to leucine [L]).

T 0097/14 - After 18 years, further search

Key points

• In this examination appeal, the Board “finds that the decision under appeal is not sufficiently reasoned. Furthermore, the appellant's arguments have not been properly taken into account. Thus, there has been a violation of both Rule 111(2) and Article 113(1) EPC. This is a substantial procedural violation in the sense of Rule 103(1) EPC.”
• Moreover, “the substantial procedural violations in this case are, in the Board's judgment, a fundamental deficiency and consequently a special reason for remitting the case.”
• “The present application has been pending for 18 years [request for EP entry filed in 2004], and in those circumstances, it would be preferable if the case could be finally settled without further delay.”.
• However, the Board is not in a position to settle the case, because the search was incomplete.
• “The appellant expressed doubts whether a Board of Appeal was at all competent to review the field of search. The present Board does not have any doubts in this regard. The Board may exercise any power within the competence of the examining division (Article 111(1) EPC). Since the examining division may review the search, so may the Board.”
  
• As to the requirements for an inventive step objection: “ A reasoned objection of lack of inventive step must establish the state of the art and set out, in a clear and complete manner, which features of the claimed invention are known from the prior art and where those features can be found in the prior art. In other words, a proper feature mapping is required. This is all the more important when the objection relies on non-documentary prior art, because such evidence is more difficult to verify.”. 

EPO T 0097/14 -  link

Reasons for the Decision

1. The invention

1.1 The invention concerns asynchronous web services.

1.2 Traditional web services are synchronous i.e. a client calling the web service has to wait for the server to return the result. The client cannot process other tasks while waiting.

Asynchronous web services, on the other hand, do not require the client to wait. The client calls the web service and then goes on to process other tasks. Once the web server has completed, it returns the result in a callback to the client.

The callback is made to a callback address indicated in the original call.

T 0406/86 - Rule 79 and Rule 81

Key points

• Because Art.114 only refers to holding facts and evidence inadmissible, the question arises of what provision of the EPC provides the basis for holding amended claims inadmissible in opposition proceedings and in opposition appeals?
• As noted in T1914/12, “The RPBA can help in clarifying and interpreting the EPC but they cannot confer on the boards any powers that the EPC does not give them” (CLBA VII.1.4).
• This old decision T 0406/86 provides an analysis.
• “Although Rules 57 and 58 EPC [1973] directly concern only those criteria to be applied by the Opposition Division when the question of inviting the patent proprietor to make amendments arises, they indicate clearly and conclusively, so the Board is convinced, that even if not explicitly invited by the Opposition Division the patent proprietor may expect his proposals for amendments [i.e. auxiliary requests] to be allowed [i.e. admitted] only if it [=the OD] decides after exercising due discretion that it [=the OD] regards them as appropriate and/or necessary in the above sense. "
• Rule 58(2) EPC 1973 corresponds to Rule 81(3) EPC 2000 which provides that: “In any communication under Article 101, paragraph 1, second sentence, the proprietor of the European patent shall, where necessary, be given the opportunity to amend, where appropriate, the description, claims and drawings.”
• These Rules apply equally in appeal (R.100(1) EPC 2000, Rule 66(1) EPC 1973).
• I just highlight that the Board derived the principle that late-filed claim requests in opposition can be held inadmissible from a textual analysis of the Implementing Regulations.
•  The legal basis for Rules 75 57 and 58 EPC 1973 was Article 101(2) EPC 1973: “In the examination of the opposition, which shall be conducted in accordance with the provisions of the Implementing Regulations, the Opposition Division shall invite the parties, as often as necessary, to file observations, within a period to be fixed by the Opposition Division, on communications from another party or issued by itself.” (now in Article 101(1) EPC 2000).
• See also T 0295/87 (link): "Although Article 101(2) and Rule 57 EPC [1973] only specifically refer to the criteria which the Opposition Division should use when considering whether to invite the filing of observations, in the Board's view it is clearly and necessarily implicit in these provisions that, in the absence of an express invitation from the Opposition Division, the parties may only file observations as a matter of discretion, when the Opposition Division considers them to be "necessary" or "expedient", in the sense discussed above. It would make a nonsense of these provisions to interpret them as providing that the Opposition Division should only invite observations from parties when it is considered "necessary" or "expedient", but that the parties can file observations as a matter of right even when they are unnecessary or inexpedient. (In this connection reference is made to Decision T 406/86 dated 2 March 1988, OJ EPO 1989, 302)."  it should be recognised that, in appropriate cases, both the Opposition Division and the Boards of Appeal have the power, and indeed the duty, to refuse to admit observations and/or supporting documents for consideration in the opposition and, respectively, the appeal, in the exercise of discretion under Articles 101(2) and 114(2) and Rule 57(3) EPC [1973]."
• Though here in T 0295/87 the focus is on what is now Rule 80 EPC 2000 (the substantive ground for inadmissibility of amended claims in opposition). In T 406/86, the amendments were late filed and not prima facie clear.

EPO T 0406/86 - link (German) - English OJ version

3.1 In opposition proceedings (including related appeal proceedings) the question whether to allow the patent proprietor's proposals for amendments to the description or claims is left to the Opposition Division and Board of Appeal, which must exercise due discretion in the matter. This derives from the relevant provisions of the EPC as follows:

3.1.1 Article 101(2) EPC lays down that examination of the opposition (i) shall be conducted in accordance with the provisions of the Implementing Regulations and that (ii) "the Opposition Division shall invite the parties, as often as necessary, to file observations ... on communications from another party or issued by itself."

T 0418/17 - No remittal

Key points

• This is one of the first cases where the Board decides on whether or not to remit the case in opposition under Art. 11 RPBA 2020 where one of the parties requests a remittal and the other party objects.
• The OD found the claims of the main request to be allowable; the OD therefore did not consider AR-1 where granted claims 1 and 6 are combined. In appeal, the patentee makes AR-1 the new main request. The opponent request that the case be remitted.
• “In the present case, notwithstanding the fact that the decision under appeal is limited to the main request, auxiliary request 1 does not alter the legal and factual framework, because it results from a combination with a granted dependent claim (namely claim 6). Furthermore, the [opponent] was in a position to examine auxiliary request 1. [...] Accordingly, the Board does not consider a remittal to be justified.”
• I note that in other cases, the Boards have found appear to have found a combination of granted claims to be a change of the ‘legal and factual framework’, see e.g. T 2242/17.

EPO T 0418/17 -  link


2. Remittal to the opposition division

The respondent, by letter dated 25 May 2020, made auxiliary request 1 its highest ranking request. According to the appellant, the decision under appeal is limited to the main request and does not relate to the auxiliary requests. The appellant therefore requests that the case be remitted to the opposition division for further discussion on auxiliary requests 1-9.

Under Article 11 RPBA 2020, the Board may remit the case to the opposition division if there are special reasons for doing so. Although it is the primary object of the appeal proceedings to review the decision under appeal in a judicial manner (see Article 12(2) RPBA 2020), there is no absolute right to have every issue decided at two instances.

In the present case, notwithstanding the fact that the decision under appeal is limited to the main request, auxiliary request 1 does not alter the legal and factual framework, because it results from a combination with a granted dependent claim (namely claim 6). Furthermore, the respondent (see the letter dated 20 July 2018, pages 17-20) was in a position to examine auxiliary request 1. Given that the Board finds auxiliary request 1 to be allowable (see below), the question of a remittal in relation with auxiliary requests 2-9 is moot.

Accordingly, the Board does not consider a remittal to be justified.

T 2044/16 - Partial reimbursement appeal fee

Key points

• The Board decides that a new Communication under Art. 15(1) RPBA triggers the one-month period of Rule 103(4)(c) EPC for obtaining a 25% refund of the appeal fee by withdrawing the request for oral proceedings anew, even if the new Communication is issued one month before the oral proceedings and deals with organizational matters only (in this case: enquiring whether the parties intend to attend the hearing).
• The decision is a bit surprising because CA/80/19 (link) para. 82 explains that "If a request for oral proceedings is withdrawn in good time before the oral proceedings, the Board may be able to use this freed-up capacity to schedule oral proceedings in another appeal case."
• The Board acknowledges this.
• “Entscheidend ist der mit der Einführung auch des neuen Rückzahlungstatbestands nach Regel 103(4)(b) EPÜ verfolgte Zweck, einen Anreiz zu geben, unnötige Arbeitsschritte (vorliegend die Vorbereitung und Durchführung der mündlichen Verhandlung) zu vermeiden und damit die zur Verfügung stehende Arbeitszeit möglichst effizient nutzen zu können, vgl. die Begründung auch der am 1. April 2020 in Kraft getretenen Änderung von Regel 103 EPÜ in CA/80/19, hier insbesondere Randziffern 61 und 82-86. Dieser Zweck wird auch erreicht, wenn ein zweiter, rein organisatorischer Vorbereitungsbescheid zur Rücknahme des Antrags auf mündliche Verhandlung führt und letztere darauf, wie vorliegend, abgesetzt werden kann. Dass der zweite Vorbereitungsbescheid aufgrund der aktuellen Situation (Vorsichtsmaßnahmen im Hinblick auf die COVID19-Pandemie) erst einen Monat vor der mündlichen Verhandlung erging, kann nicht zulasten der Beschwerdeführerin gehen, die durch ihre Antragsrücknahme den Weg für einen effizienten Abschluss des Verfahrens im schriftlichen Verfahren geebnet hat. 
• Auch wenn der vorgesehene Termin in einer solchen Situation nicht mehr für eine andere Verhandlung genutzt werden kann, wie in Randziffer 82 von CA/80/19 angesprochen, bleibt doch der oben angesprochene Zeitgewinn für die Kammer und die anderen Beteiligten. 
• Vor allem können die hier gegebenen zeitlichen Umstände nicht dazu führen, Regel 103(4)(c) unterhalb ihres recht eindeutigen Wortlauts ("innerhalb eines Monats ab Zustellung einer von der Beschwerdekammer zur Vorbereitung der mündlichen Verhandlung erlassenen Mitteilung") auszulegen.”
• As a comment, although Summons are also issued under Art.15(1) RPBA (first para), new summons for a (postponed) date are probably not enough to trigger the Rule 103(4)(c) period because the Board refers to a ‘preparatory communication’ (‘jede weitere vorbereitende Mitteilung’).

Addendum

See also T 0110/18 : “The appellant withdrew its request for oral proceedings within one month of notification of the second communication pursuant to Article 15(1) RPBA, which was exceptionally issued in view of the COVID-19 outbreak. The board follows the rationale of T 265/14 (of the same board in a different composition) and concludes that the requirements for a 25% reimbursement of the appeal fee according to Rule 103(4)(c) EPC are met. This is also in accordance with the explanations given in the explanatory document to the Rule 103 EPC change (see CA/80/19, point 82) since in the case in hand the oral proceedings cancelled due to the COVID-19 outbreak do not have to be rescheduled.”

Addendum 21.07.2020
However, CA/80/19  para. 72 and 74 indicate that the one month period was set (under Rule 103(3)(a) in order to send out summons in a different case and to use the oral proceedings room for a different case on the date. 

EPO Headnote (translation)

A reimbursement under Rule 103 (4) (c) EPC is not precluded by the fact that the Board had already issued a more detailed preparatory Communication in accordance with Article 15 (1) RPBA 2020.

The time limit under Rule 103 (4) (c) EPC is triggered again by any further preparatory communication from the Board, even if it has essentially organizational content and is only issued one month before the hearing. The considerations discussed in T 265/14 regarding the repayment condition of Rule 103 (2) (b) EPC (now Rule 103 (3) (b) EPC) can also be applied to the present case. The decisive factor is the intended gain in working time, which is achieved through the withdrawal of the request declared on the notification and the resulting efficient termination of the procedure in the written procedure.

EPO Headnote
Einer Rückzahlung nach Regel 103(4)(c) EPÜ steht nicht entgegen, dass die Kammer bereits zu einem früheren Zeitpunkt einen ausführlicheren Vorbereitungsbescheid gemäß Artikel 15(1) VOBK 2020 erlassen hatte.

Die Frist nach Regel 103(4)(c) EPÜ wird durch jede weitere vorbereitende Mitteilung der Kammer erneut ausgelöst, auch wenn diese im wesentlichen organisatorischen Inhalt hat und erst einen Monat vor der mündlichen Verhandlung ergeht.

Die zum Rückzahlungstatbestand der Regel 103(2)(b) EPÜ (nun Regel 103(3)(b) EPÜ) in T 265/14 diskutierten Erwägungen sind auch auf die vorliegende Fallkonstellation übertragbar. Entscheidend ist der mit der Regelung beabsichtigte Arbeitszeitgewinn, der durch die auf die Mitteilung erklärte Antragsrücknahme und die dadurch ermöglichte effiziente Verfahrensbeendigung im schriftlichen Verfahren erreicht wird.

(siehe Gründe, Ziffern 5 bis 5.6)

EPO T 2044/16 - link

5. Regel 103(4)(c) in der ab 1. April 2020 geltenden Fassung sieht die Rückzahlung von 25 % der Beschwerdegebühr vor, wenn der Antrag auf mündliche Verhandlung innerhalb eines Monats nach Zustellung einer von der Beschwerdekammer zur Vorbereitung der mündlichen Verhandlung erlassenen Mitteilung zurückgenommen wird und eine mündliche Verhandlung nicht stattfindet.

T 1798/13 - Simulating the weather is not technical (and G 1/19)

Key points

• In this examination appeal about a claim directed to a “method for forecasting a value of a weather-based structured financial product”, i.e. about predicting the value of a financial product, the applicant argues that the method steps provide "an improvement in the weather data by calculating and further processing", which would be a technical effect. 
• “In the Board's view this leads to the key issue in this case, namely whether improving the accuracy of given data of a weather forecast is technical. If it is not, then the details of the algorithm, the "mathematics" as the division put it, does not help.”
• “The Board judges that it is not. The "weather" is not a technical system that the skilled person can improve, or even simulate with the purpose of trying to improve it. It is a physical system that can be modelled in the sense of showing how it works. In the Board's view, this kind of modelling is rather a discovery or a scientific theory, which are excluded under Article 52(2)(a) EPC”.
• It seems to me that the present Board effectively proposes an answer in the pending referral G1/19 . Of course, question 1 therein assumes "the computer-implemented simulation of a technical system or process", but the actual subject-matter of the claim 1 at issue in  G1/19 is  "a computer-implemented method of modelling pedestrian crowd movement in an environment", and pedestrian crowd movement is in my view quite similar to 'the weather': neither pedestrians nor clouds are “a technical system that the skilled person can improve”, to quote the present Board. Claim 1 at issue in G1/19 does not recite a 'building' and in any case, it isn't the building that is simulated (e.g. constructional modelling) but the pedestrians.
• The present decision is consistent with T 1227/05, in that simulation of 1/f noise in an (electric) circuit is technical because the skilled person can try to improve the electric circuit,  in particular, to improve the noise resistance. 

EPO T 1798/13 -  link

EPO Headnote

" The "weather" is not a technical system that the skilled person can improve, or even simulate with the purpose of trying to improve it. It is a physical system that can be modelled in the sense of showing how it works. This kind of modelling is rather a discovery or a scientific theory, which are excluded under Article 52(2)(a) EPC and thus do not contribute to the technical character of the invention "

VIII. Independent claim 1 of the sole request reads as follows:

"1. A method for forecasting a value of a weather-based structured financial product for steering of an optimal weather derivative portfolio based on specified weather measures comprising temperature and/or precipitation and/or hours of sunshine and/or heating degree days and/or cooling degree days and/or wind speed retrieved from a weather data measuring and monitoring system comprising:
calculating reference weather data at least including temperature data from historical weather data at least including temperature data stored in a database (16) or retrieved from an external weather-data measuring system (5) by means of a weather reference module (11) for a defined time period and a defined geographical area, wherein the historical weather data covering a plurality of years as a time series, is decomposed in portions with deterministic data and a portion with stochastic data, wherein the deterministic portions include historical trend data and seasonal pattern data, and wherein the reference weather data is determined for the defined time period and the defined geographical area defined in correspondence with the parameters of the structured financial product to be forecasted by establishing the reference weather data from the deterministic data, applicable to the defined time period, through auto regression, and from stochastic data determined for the time period;
establishing forecasted weather data by means of a weather forecast module (12) based on multi-year historical weather data and long-term weather forecast data covering one or more months and storing the forecasted weather data as multiple sets of forecasted weather data for subsequent time periods in database (16) assigned to their respective time period;
calculating weighted forecasted weather data by means of a weighting module (121) from the multiple sets of forecasted weather data stored in the database (16), wherein each set of forecasted weather data is weighted by a weighting factor having a value that increases from one time period to the next subsequent time period;
calculating a forecasted weather index at least including an average temperature, a cumulative temperature a number of heating degree days or a number of cooling degree days for the defined time period and the defined geographic area from the forecasted weather data, wherein the type of index is defined by a respective parameter of the financial product to be forecasted, and calculating a forecast value of the structured financial product based on forecasted weather data for a defined time period and a defined geographical area, wherein the forecast value is calculated by applying structural parameters of the financial product to the forecasted weather index determined from the forecasted weather data;
calculating a reference weather index at least including an average temperature, a cumulative temperature a number of heating degree days or a number of cooling degree days for the defined time period and the defined geographic area from the reference weather data by means of a reference module (13), wherein the type of index is defined by a respective parameter of the financial product to be forecasted, and calculating a reference value of the structured financial product based on the reference weather data, wherein the reference value is calculated by applying the structural parameters of the financial product to the reference weather index determined from the reference weather data;
calculating a ranked probability score for the reference weather data by integrating a cumulative distribution function of the forecasted weather data representing the actual relevant weather situation, and calculating a ranked probability score for the forecasted weather data, by integrating a cumulative distribution function of the forecasted weather data representing the actual relevant weather situation,
calculating a quality indicator by means of a quality indicator module (15), indicative of a forecasting quality associated with the forecasted weather data, based on the forecasted weather data and the reference weather data, wherein the quality indicator is calculated as a ranked probability skill score from the ranked probability score for the forecasted weather data and the ranked probability score for the reference weather data, the ranked probability skill score indicating the accuracy of the forecast of the weather data compared to the reference weather data according to the percentage of improvement in accuracy of the forecast weather data over the reference weather data; and
calculating the value of the financial product by means of a value forecasting module from the reference value and from the forecast value weighted by the quality indicator, wherein the influence of the forecasted value on the calculated value of the financial product is adjusted."

Reasons for the Decision

2.9 The applicant's second argument is essentially that also an improvement in the weather data by calculating and further processing it is also technical. In the Board's view this leads to the key issue in this case, namely whether improving the accuracy of given data of a weather forecast is technical. If it is not, then the details of the algorithm, the "mathematics" as the division put it, does not help.