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04.10.19

The technical nature of simulation methods – a referral to the Enlarged Board of Appeal

The EPO’s Technical Board of Appeal in case T 0849/14 have made a new referral to the Enlarged Board of Appeal (EBA) relating to whether computer-implemented simulation methods are patentable. Referrals to the EBA in the area of computer technology are rare.

Under European practice, methods implemented on a computer are only considered patentable if the method can be understood to have a technical effect. As such, methods that are only considered to provide a cognitive benefit to the user are not considered technical, whereas those that provide a functional benefit are considered technical.

Background

According to earlier case law T1227/05 (related to the simulation of circuits to determine how they are affected by noise before they are fabricated) , simulation methods themselves are part of the fabrication process, and as such a simulation method cannot be said to lack a technical effect only based on the fact that they do not incorporate the end product.

The invention in the appealed application involved a computer implemented method used to simulate the movement of a crowd of pedestrians through an environment. The purpose of the simulation is to aid in designing a building structure.

In T0849/14, the Board of Appeal had to decide whether the method of testing, by simulation, a modelled environment with respect to crowd movement was a functional technical feature. Despite multiple similarities between the present case and earlier case T1227/05, the Board of Appeal were not fully convinced by the reasoning given in case T1227/05.  Its doubts are twofold.

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 T1227/05appears to rely on the greater speed of the computer-implemented methodas an argument for finding technicality. Butany 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).

Referral

The Board has thus referred three questions to the EBA to seek clarity on the state of computer-implemented simulation methods at the EPO. The questions are:

(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?

(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?

(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?

The EBA should now consider these questions, and we will be watching closely for developments. During the referral, processing of applications, oppositions, and appeals in which a decision depends only on the outcome of the referral can be stayed at the request of the parties.

http://ipkitten.blogspot.com/2019/03/the-patentability-of-computer-simulated.html

https://www.bardehle.com/europeansoftwarepatents/knowledge-base/simulating-pedestrian-crowd-movement-to-be-decided-by-the-enlarged-board-of-appeal/

 

If you have any questions on this topic, please contact Andy Cloughley at andycloughley@mskpatents.com.

Article written by Romi Korotana.

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