The implementation of models and simulations plays an important role in innovation and can be applied to a wide variety of technical fields. Yet the protection of simulation inventions is not always straightforward. At the European Patent Office (EPO), inventions directed to simulations fall within the category of computer‑implemented inventions which often contain both “technical” and “non‑technical” features. The patentability of such claims is examined using the so‑called COMVIK approach formulated in case (T641/00) which states that “an invention consisting of a mixture of technical and non-technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character whereas features making no such contribution cannot support the presence of inventive step.”
A recent decision (G1/19) issued by the Enlarge Board of Appeal (EBA) of the EPO confirms the use of this approach for determining the patentability of simulations and provides further useful clarifications. A summary of the decision can be found in the corresponding EPO press release.
Background of the case
The case in question (application No. 03793825.5) relates to a simulation that can be used in a process for designing a venue such as a railway station or a stadium. In essence, the designer creates or imports an architectural venue design, specifies the constituents of a pedestrian population that is typical for the venue being designed, and performs several simulations of pedestrian flows.
Various claims have been presented during examination but Claim 1 of the main request [1] relates to a computer implemented method of modelling pedestrian crowd movement in an environment. The method simulates a plurality of pedestrians as they move through the environment. For each pedestrian, a “preferred step” is determined on the basis of a pedestrian-specific profile, a provisional path through a model of the environment and certain “dissatisfaction”, “inconvenience” and “frustration” cost functions. It is also determined if the step is “feasible by considering whether obstruction infringe said personal space”.
The Examining division refused the application, arguing that the simulation model was non‑technical and that its implementation on a computer was obvious.
The applicant appealed this decision submitting that the invention produced a technical effect in the form of “a more accurate simulation of crowd movement”, hence essentially arguing that the computer-implemented simulation of crowd movement qualifies as a technical effect.
The applicant also relied on T1227/05 relating to the numerical simulation of a noise‑affected circuit, in which it was concluded that the claimed simulation 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. The decision also stated that “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….” Based on T1227/05, the applicant argued that modelling pedestrian crowd movement in an environment constituted an adequately defined technical purpose for a computer-implemented method.
The board acknowledged that an analogy could be made between a method of testing a modelled environment with respect to pedestrian crowd movement and a method of testing a modelled circuit with respect to noise influences and that the T 1227/05 decision supported the applicant’s case. However, the Board questioned the validity of the reasoning in T1227/05 arguing that 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. In the Board’s view, “a technical effect requires, at a minimum, a direct link with physical reality, such as a change in or a measurement of a physical entity”.
In consideration of this apparent divergence of opinion, the Board referred three questions to the Enlarged Board of Appeal (T 0489/14):
- 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?
- 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?
- 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?
The decision of the Enlarge Board of Appeal
The Enlarge board of Appeal (EBA) listed the main features of a computer-implemented simulation (point 104) as follows:
- A numerical model of a system or process (which may be technical or non-technical) in the form of data that can be processed by a computer;
- Equations representing the behaviour of the model;
- Algorithms providing numerical output that represents the calculated state of the modelled system or process.
The EBA then confirmed (points 136 and 120) the suitability of the COMVIK approach for the assessment of computer-implemented simulations stating that “numerical simulations may be patentable if an inventive step can be based on features contributing to the technical character of the claimed simulation method”.
The EBA further stated (point 137) that “when the COMVIK approach is applied to simulations, the underlying models form boundaries, which may be technical or non-technical. In terms of the simulation itself, these boundaries are not technical. However, they may contribute to technicality if, for example, they are a reason for adapting the computer or its functioning, or if they form the basis for a further technical use of the outcomes of the simulation (e.g. a use having an impact on physical reality) [2].” And adding that “such further use has to be at least implicitly specified in the claim.”
The EBA discussed (point 88) whether a claimed feature must cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim. The EBA held that there was no need to require a direct link with external physical reality in every case stating that “On the one hand, technical contributions may also be established by features within the computer system used. … While a direct link with physical reality, based on features that per se are technical and/or non-technical, is in most cases sufficient to establish technicality, it cannot be a necessary condition, if only because the notion of technicality needs to remain open”.
On the relevance of model accuracy, the EBA held (point 111) that “whether a simulation contributes to the technical character of the claimed subject-matter does not depend on the quality of the underlying model or the degree to which the simulation represents “reality”. However, the accuracy of a simulation is a factor that may have an influence on a technical effect going beyond the simulation’s implementation and may therefore be taken into consideration in the assessment of inventive step.”
With regards to T1227/05, the EBA noted (point 127) that although the deciding board in that case found that the simulation of a circuit subject to 1/f noise constituted an adequately defined technical purpose for a computer-implemented invention, it was only “provided that the method is functionally limited to that technical purpose” and that an emphasis was put on the “specific” and “limited” purpose of the output of the claimed simulation methods.
In the view of the EBA (point 128) “calculated numerical data reflecting the physical behaviour of a system modelled in a computer usually cannot establish the technical character of an invention in accordance with the COMVIK approach, even if the calculated behaviour adequately reflects the behaviour of a real system underlying the simulation”. The EBA further stated that “only in exceptional cases may such calculated effects be considered implied technical effects”.
The EBA then answered the referred questions (points 139-144). In response to the first question the EBA confirmed that “A computer-implemented simulation of a technical system or process that is claimed as such can, for the purpose of assessing inventive step, solve a technical problem by producing a technical effect going beyond the simulation’s implementation on a computer.” The EAB also specified that like any other computer-implemented method, a simulation without an output having a direct link with physical reality may still solve a technical problem.
Concerning the second question, the EBA made reference to the COMVIK approach stating that “depending on the technical context, features that are nontechnical per se may still contribute to the technical character of a claimed invention, just as features that are technical per se will not necessarily contribute to it”. While the simulation of non-technical processes may contribute to the technical character of an invention, it may also be that the simulation of a technical system does not contribute to it. So in response the EBA stated that for the inventive step assessment “it is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or process.”
With regards to the third question, the EBA did not feel the need to introduce special rules if a simulation is claimed as part of a design process, stating that “any special treatment of such combinations would cause delimitation problems since “design” is not a clear criterion and the term itself need not even be mentioned in a claim to a design process” (See point 144). Therefore the EBA considered that “the answers to the first and second questions are no different if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design.”
Conclusion
In summary, the decision confirms that computer-implemented simulations are not excluded from patentability in Europe. Following the COMVIK approach, the question is how a claimed invention makes a technical contribution. In the context of a computer implemented invention, the use of a general-purpose computer always constitutes prior art and as a result the invention needs to be “technical” beyond the use of a general-purpose computer. As this is the case in many other types of computer-implemented inventions the challenge is often to identify the technical effect in question. Although the decision maintains that the notion of technicality must remain open “in anticipation of potential new developments”, it nonetheless provides useful pointers for identifying such technical effects.
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[1] ” 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 through a model of the environment from a current location to an intended destination; providing a profile for said pedestrian; determining a preferred step, to a preferred position, 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 around said preferred position identifying obstructions in said neighbourhood, said obstructions including other pedestrians and fixed obstacles; determining a personal space around said pedestrian; determining whether said preferred step is feasible by considering whether obstructions infringe said personal space over the course of the preferred step.”
[2] An invention may have (i) technical features which contribute to technical effect, (ii) technical features which do not contribute, (iii) non-technical features which contribute and (iv) non-technical features which do not contribute to the technical solution of a technical problem and thereby potentially to the presence or not of an inventive step. Features according to (iii) have been established by the case law described: non-technical features interacting with the technical subject matter of the claim for solving a technical problem.
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