In a current case, the Enlarged Board of Appeal is supposed to create new jurisdiction with respect to computer implemented simulation processes.
The case at question refers to the computer implemented simulation of a certain number of pedestrians in a building based on a physical model of the pedestrians. Each pedestrian is represented in the following way: He or she wants to get from point A to point B, but is hindered to do so by various problems or circumstances. Typical influences on the pedestrian are other pedestrians, as well as objects which are located between A and B. Furthermore, the pedestrian is considered as a physical model with parameters such as freedom of movement, pace and the like.
Simulations like these help engineers when constructing a new building, i.e. when concepting a design of the building such that pedestrian flows within the building are optimized.
It is obvious that such simulations in case of few pedestrians can principally be made in one’s mind or on paper, however, when it comes to a large number of people, it is principally impossible to make a simulation and the use of a computer is inevitable.
In the present case, the examination department in the first instance disagreed that there is an inventive activity, without naming any documents, and reasoned that there is no “technical” problem.
The Technical Board of Appeal of the second instance did not see any uniform jurisdiction enabling it to decide on the present case. The strict observance of the criteria in G 3/08 would lead to the result that there is no further technical effect. Then, a rejection due to lack of an inventive activity must be expected. With respect to simulation processes, there is, however, also the decision T 1227/05, which deals with the numeric simulation of circuits which are subject to white noise. Both in the Guidelines for Examination at the European Patent Office as well as online at the EPO’s homepage, this decision is cited as a positive example regarding the presence of an inventive activity in case of simulation processes.
The Technical Board of Appeal explained in detail the similarities of the situations in T 1227/05 to the present case (electrodes in electric circuits vs. pedestrians in the building). In simple words, T 1227/05 says that due to the speed of the simulation process, an extensive class of drafts can be tested virtually and be examined for promising candidates, so that it can be assessed before production takes place if the construction of a prototype is promising. Due to the fact that with the circuits simulated there, a sufficiently determined class of technical objects would be defined, a patent could be granted on the simulation process.
The Technical Board of Appeal which deals with the current case points out that it could not be the task of the European Patent Office to provide patent protection for simulation processes, if this was not originally intended by the legislator. The Enlarged Board of Appeal would either have to decide on overruling T 1227/05 or decide that in case of simulation processes, special criteria must be used which would then have to be established.
The submitted question
It was primarily asked if the computer implemented simulation of a technical system or process as such can solve a technical problem, which generates a technical effect, which can be found outside the implementation of the simulation at the computer when the simulation as such is claimed. This would have the effect that the single steps of the simulation (typically mathematical formulas) can be considered in the assessment of the inventive step.
It was also asked which relevant criteria there is for assessing the question if a computer implemented simulation solves a technical problem and if it is sufficient for this purpose that the simulation itself is based at least in parts on technical principles which are subject to the underlying simulated system or process. In a third question, the connection to a design process (here a building architecture), in which the simulation is used, is made more concrete, for example in order to verify a design.
We would like to point out that the Examiners at the EPO in the first instance often take the easy way out. They do not search for any or only for remote state of the art which refers to a computer implemented invention and argue in very general terms that a technical task is missing.
It can be imagined that not receiving any search result regarding a patent application is quite unsatisfactory for the applicant.
While some years ago, it might not have been possible yet to search for sensible state of the art regarding such simulation processes, it should nowadays easily be possible to search for close state for the Examiners of the EPO. This is last but not least due to the large number of patent applications which were made in this sector in these last few years.
If the appeal instance agreed with the applicant, the case would at least be referred back to the first instance, asking it to carry out a complete search.
In our view, computer implemented inventions should be examined by applying the known criteria for examining novelty and by applying the problem-solution approach when assessing inventive activity. This requires at least some knowledge of the relevant state of the art.
Dipl.-Phys. Thorsten Brüntjen