Tomorrow, we will be following and tweeting live updates on the Enlarged Board hearing for simulation-type inventions. The hearing itself will be virtual (not simulated) and open to the public.
Simulations, as many European patent attorneys have been attesting, are a vital part of modern R&D. The general concept of “simulating” uses a mathematical model which approximates the way a physical process happens. For example, the way a car crumples during a crash can be simulated using a computer model. The model would include a representation of the car (and a wall), some initial conditions (like the speed of the car), some material properties, and some calculations the computer can do to work out what happens next in a series of steps (think “F=ma”, and “every action has an equal and opposite reaction” applied across every little building block of the car). The results of such simulations do indeed influence the design of modern technology; knowing that the passengers are likely to be safer in a car with tweaked dimensions allows engineers to make better decisions, earlier in the design process and without having to physically manufacture every possible bumper.
How did we end up at an Enlarged Board hearing? T1227/05 is an earlier case relating to simulation inventions which made its way into the Guidelines for examining European patent applications. The Board of Appeal in the present case wants to depart from the earlier reasoning and so a conflict in case law would arise. The earlier case related to a method of simulating an electronic circuit which was subjected to noise. You can imagine that simulating noise in a circuit would be useful for predicting which circuit designs might perform better; and the EPO agreed, this was pretty darn technical.
The guidelines for examination state:
Such computer-implemented simulation methods cannot be denied a technical effect merely on the ground that they precede actual production and/or do not comprise a step of manufacturing the physical end product.”
This all sounds rather good for simulation type inventions. So where did the sticking point happen?
The referral of G1/19 comes from a case relating to the simulation of pedestrians moving through walkways. It sounds a bit more detached from physical and technical considerations. Surely the decisions people are making when they walk through a building lead us completely away from technical subject-matter?
Well, perhaps not. Crowds and traffic share a lot in common with the motion of fluids. You’ve probably experienced a traffic jam on the motorway which seems to last for ages, only to come out the other end to see that, infuriatingly, there was nothing there to cause the slowdown. This was caused by a ripple which was set-off a few miles ahead and progressed back towards you. Once the ripple is set in motion it will keep going and can actually be predicted pretty accurately. This is also what happens when you have barriers at the tube station, or someone stops to tie their shoe lace in the middle of the pavement.
The same thing happens in fluids in pipes. When shutting-off a tap at one end of a pipe, the ripple progresses along the pipe and likely causes a burst somewhere behind your plasterboard. If the modelling of crowds is done in the same way as water in a pipe or electrons in an electronic circuit, should it still be excluded?
This is where the referred questions come in. We need some clarity.
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 first two questions ask whether a simulation-type claim can solve a technical problem even if the method only relates to the simulation itself. We do wonder what the technical effect could be when the product is simulation results which might match real-world results. If the board answers the first question in the affirmative, we may see the floodgates open to simulation-type claims. This could feasibly have further-reaching consequences for other software-based inventions.
The third question asks the first two questions again, but if the claimed method is recited as part of a design process. Perhaps a more palatable claim for the EPO to accept. This might allow the Enlarged Board to give us a better steer on where the boundary lies between electrons moving in a circuit (technical) and people making decisions on how to act (non-technical).
If the board answers any of the questions negatively, then this could overturn the reasoning of T1227/05 and alter the guidelines followed by examiners.
We would attempt to predict the outcome of the hearing tomorrow, but for a lack of physical parameters which can accurately model the Enlarged Board’s decision making process. At least, there is not long to wait.