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Computer-implemented simulations – referral to the Enlarged Board of Appeal

Friday 1 March 2019

The European Patent Office (EPO) have just announced an interesting referral to the Enlarged Board of Appeal (EBA) which is likely to affect the patentability of ‘simulation’ methods. In this article, Howard Read explores the issues behind the referral and its likely impact.

Background – EPO Boards of Appeal

The Boards of Appeal are the only judicial instance in the procedures before the EPO. The Boards review contested first-instance decisions, such as arising during examination of European patent applications and opposition of granted European patents.

The Boards of Appeal include also the Enlarged Board of Appeal, the main task of which is to ensure uniform application of the European Patent Convention (EPC). The Enlarged Board of Appeal decides on points of law of fundamental importance referred to it either by a Board of Appeal or by the President of the EPO. There are currently 16 referrals pending before the Enlarged Board of Appeal.

A new referral on computer-implemented ‘simulation’ methods

Referrals to the Enlarged Board of Appeal relating to computer-implement inventions are rare. While the Enlarged Board of Appeal decided in G 3/08 that the referral, by a former President of the EPO, was inadmissible, the Enlarged Board of Appeal provided helpful opinion on the patentability of computer-implement inventions.

The Board of Appeal in T 0849/14 has now referred three questions, relating to computer-implemented simulations, to the Enlarged Board of Appeal. This referral originates, at least in part, because this particular Board of Appeal in T 0849/14 is not convinced by the reasoning of the Board of Appeal, of different composition, in T 1227/05. Thus, this particular Board of Appeal intends to deviate from the interpretation and explanations of the EPC given indecision T 1227/05 (T 0849/14 Reasons for the Decision 18).

T 1227/05 – numerical simulation of a noise-affected circuit

In T 1227/05, the Board of Appeal decided that a claimed numerical simulation of a noise-affected circuit described by a model featuring input channels, noise input channels and output channels and a system of differential or algebroid differential equations was a functional technical feature:

Simulation performs technical functions typical of modern engineering work. It provides for realistic prediction of the performance of a designed circuit and thereby ideally allows it to be developed so accurately that a prototype's chances of success can be assessed before it is built. The technical significance of this result increases with the speed of the simulation method, as this enables a wide range of designs to be virtually tested and examined for suitability before the expensive circuit fabrication process starts.

Without technical support, advance testing of a complex circuit and/or qualified selection from many designs would not be possible, or at least not in reasonable time. Thus computer-implemented simulation methods for virtual trials are a practical and practice-oriented part of the electrical engineer's toolkit. What makes them so important is that as a rule there is no purely mathematical, theoretical or mental method that would provide complete and/or fast prediction of circuit performance under noise influences.

(T 1227/05 Reasons for the Decision 3.2.2, English translation in the Official Journal)

T 0849/14 – simulating movement of pedestrians

In T 0849/14, the Board of Appeal had to decide whether a method of testing - by simulation - a modelled environment with respect to pedestrian crowd movement was also a functional technical feature. While the Board of Appeal in T 0849/14 agrees that the decision in T 1227/05 supports patentability of this modelled environment, the Board of Appeal in T 0849/14 has two concerns regarding the decision in T 1227/05:

First, although a computer-implemented simulation of a circuit or environment is a tool that can perform a function "typical of modern engineering work", it assists the engineer only in the cognitive process of verifying the design of the circuit or environment, i.e. of studying the behaviour of the virtual circuit or environment designed. The circuit or environment, when realised, may be a technical object, but the cognitive process of theoretically verifying its design appears to be fundamentally non-technical.

Second, the decision appears to rely on the greater speed of the computer-implemented method as an argument for finding technicality. But any algorithmically specified procedure that can be carried out mentally can be carried out more quickly if implemented on a computer, and it is not the case that the implementation of a non-technical method on a computer necessarily results in a process providing a technical contribution going beyond its computer implementation (see e.g. decision T 1670/07 of 11 July 2013, reasons 9).

(T 0849/14 Reasons for the Decision 15)

The referred questions

Hence, in T 0849/14, the Board of Appeal has referred the following three questions to the Enlarged Board of Appeal for decision:

1. In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation's implementation on a computer, if the computer-implemented simulation is claimed as such?

(T 0849/14 Reasons for the Decision 22)

2. If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?

(T 0849/14 Reasons for the Decision 24)

3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?

(T 0849/14 Reasons for the Decision 28)

These questions go beyond the subject matter of the claims examined in T 0849/14 to more generally the patentability of simulation methods, as also previously considered in decisions T 1265/09, T 625/11, T 1842/10 and T 988/12.

T 0849/14 – the actual claim

For completeness, claim 1 of the Main Request in Appeal on T 0849/14 recites:

A computer-implemented method of modelling pedestrian crowd movement in an environment, the method comprising:

simulating movement of a plurality of pedestrians through the environment, wherein simulating movement of  each pedestrian comprises

providing a provisional path (9) through a model of the environment from a current location (6) to an intended destination (7);

providing a profile for said pedestrian;

determining a preferred step (112'), to a preferred position (123'), towards said intended destination based upon said profile and said provisional path, wherein determining said preferred step comprises determining a dissatisfaction function expressing a cost of taking a step comprising a sum of an inconvenience function expressing a cost of deviating from a given direction and a frustration function expressing a cost of deviating from a given speed;

defining a neighbourhood (29) around said preferred position (123');

identifying obstructions in said neighbourhood, said obstructions including other pedestrians (21) and fixed obstacles (25);

determining a personal space (24) around said pedestrian;

determining whether said preferred step (112') is feasible by considering whether obstructions (21, 25) infringe said personal space over the course of the preferred step (112').

Prima facie, the subject matter of claim 1 of the Main Request in Appeal does not comprise an inventive step, according to the well-established case law of the Boards of Appeal, and as opined by the Board of Appeal in T 0849/14.

Our Opinion

While the Board of Appeal in T 0849/14 considers that there is a point of law of fundamental importance to be decided by the Enlarged Board of Appeal, the Enlarged Board of Appeal may still decide that this referral is inadmissible since there is, as yet, no deviation from the decision in T1227/05. However, even if inadmissible, the Enlarged Board of Appeal may still provide further helpful opinion on the patentability of computer-implement inventions, complementary to that in G 3/08. If this referral were admitted and the decision in T 1227/05 upheld, patentability of computer-implemented simulations more generally may be thus conferred.

Hence, this referral is expected to be of significance to Applicants, Patentees and Opponents in this technologically and economically important field, further defining the patentability of computer-implemented inventions. Furthermore, the decision in T 0849/14 provides an excellent summary of cases, before the EPO and the national courts of the contracting states, in this field (T 0849/14 Reasons for the Decision 31 to 48).

However, the tension of the Board of Appeal with the subject matterof the claims examined in T 0849/14 is evident from the decision. Unlike electrical circuit simulations, which are based entirely on the laws of physics, simulation of pedestrian crowd movement is only partly based on such laws, even if it may be modelled numerically. That is, the particular subject matter of the claims examined in T 0849/14 may be a contributory factor, possibly even a primary factor, as to why the Board of Appeal in T 0849/14 intends to deviate from the interpretation and explanations of the EPC given in T 1227/05. This view on the subject matter, though, is consistent with the well-established case law of the Boards of Appeal.

 If your business depends on computer-implemented inventions, we cansecure the intellectual property (IP) protection you need, so you can maintain your exclusivity. In addition, we can define a clear path for you through the IP surrounding your technology, so you can continue and grow your business.

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