This decision relates to a European patent application that concerns simulating pedestrian crowd movement, which was a subject of the referral to the Enlarged Board of Appeals in G 1/19. The Board decided that the behaviour of a crowd moving through an environment does not contribute to a technical effect as the potential use of such data is not limited to technical purposes, as it can be used in computer games or presented to a human for obtaining knowledge about the modelled environment. Similarly, the method of designing a building structure was also not technical as it was entirely up to the human designer as to how to revise the model and the step of measuring attributes of pedestrians cannot independently support an inventive step.

Here are the practical takeaways from the decision T 0489/14 (Pedestrian simulation/BENTLEY SYSTEMS) of November 26, 2021 of the Technical Board of Appeal 3.5.07:

Key takeaways

In the case of a computer-implemented invention, a technical effect relevant for the assessment of inventive step exists if the features of the claim directly achieve a (real) technical effect on physical reality (including both external physical reality and the “internal” physical reality of the computer system in which the invention is implemented)

The behaviour of a crowd moving through an environment does not contribute to a technical effect as the potential use of such data is not limited to technical purposes, as it can be used in computer games or presented to a human for obtaining knowledge about the modelled environment.

A design process was normally a cognitive activity. Since the data representing a model of a building structure may be used for a variety of non-technical purposes, for example in a video game, and therefore has no “implied technical use”.

Since the claim leaves it entirely up to the human designer as to how to revise the model,  the simulation does not influence the designed model in any technical manner and thus does not contribute to a technical effect.

The technical step of measuring attributes of pedestrians cannot independently support an inventive step and does not interact with the other features of the claim to provide a combined technical effect.

The invention

The patent application underlying this case concerns the modelling of pedestrian movement, which could be used to help design or modify a venue (building structures like houses or train stations). According to the applicant, this provides a more accurate and realistic simulation of pedestrian crowds in real-world situations, which could not be adequately modelled by conventional simulators. The invention is said to be based on the insight that human interaction could be expressed and modelled in the same way as physical interactions.

Fig. 2 of WO 22004/023347 A2
Fig. 2 of WO 22004/023347 A2
  • Claim 1 of the Main Request

The Referral (G 1/19)

The present appeal was subject to an interlocutory decision on 22 February 2019, where the Board had raised doubt whether a method of modelling pedestrian crowd movement in an environment and using the results for designing a building structure is technical or not. According to earlier case law referring to the simulation of an electronic circuit, a computer-implemented method has technical character if the method is functionally limited to a technical purpose. However, the Technical Board of Appeal was uncertain whether the earlier reasoning is correct since the claimed subject-matter allegedly lacks a link to the physical reality.

Hence, the Board formulated three referral questions to the Enlarged Board of Appeal (the highest judicial entity in the European patent system) asking it to decide essentially whether the simulation of a technical system has to be excluded from patent protection or not.

This was discussed in our previous article Simulating pedestrian crowd movement: to be decided by the Enlarged Board of Appeal, with the practical takeaways from the interlocutory decision of T 0489/14 (Pedestrian simulation/CONNOR) of 22.2.2019

The Enlarged Board of Appeals then handed down its decision in G 1/19 on the patentability of simulation of Computer-implemented simulation. This decision was also discussed in detail in the video IP Expert Talk: Decision G 1/19, see below:

The referring Board summarised the answers to the referral G 1/19 as follows:

2.3 The order of decision G 1/19 answers the first question in the affirmative, i.e. a computer-implemented simulation of a technical system or process that is claimed as such, i.e. on its own, 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.

With respect to the second question, the order only states that for that 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.

The Enlarged Board refrained from giving an exhaustive list of criteria for assessing whether a computer-implemented simulation solves a technical problem by producing a technical effect that goes beyond the simulation’s implementation on a computer, but it did give further guidance.

2.4 In point 88 of its decision, the Enlarged Board considered that a direct link with external physical reality was not always necessary. On the one hand, technical contributions could be established by features within the computer system. On the other hand, there were many examples in which potential technical effects, which could be distinguished from direct technical effects on physical reality, had been considered in the course of the technicality/inventive-step analysis. Moreover, the notion of technicality had to remain open.

2.5 With respect to potential technical effects, the Enlarged Board added that if claimed data or data resulting from a claimed process was specifically adapted for the purpose of controlling a technical device, the technical effect that would result from this intended use of the data could be considered “implied” by the claim; however, this argument could be made only if the data had no other relevant uses, since otherwise the technical effect was not achieved over substantially the whole scope of the claimed invention (G 1/19, points 94 and 95).

Is it patentable?

Based on the guidance from the referral G 1/19, the Board concluded that the computer-implemented method of modelling pedestrian crowd movement in an environment (Main Request) did not contribute to the technical effect :

2.6 The Enlarged Board also dealt with the argument that “virtual or calculated technical effects” which were not achieved through an interaction with physical reality, but were calculated so as to correspond closely to “real” technical effects of physical entities, should be treated as technical effects for the purpose of assessing inventive step (using the COMVIK approach).

The Enlarged Board distinguished such “virtual or calculated” effects from potential technical effects which necessarily became real technical effects, for example when a computer program or a control signal for an image display device was put to its intended use (G 1/19, point 97).

It explained that calculated information reflecting the status or physical properties of a physical object was, first and foremost, mere data which could be used in many ways. In exceptional cases it could have an “implied technical use” which could be the basis for an “implied technical effect“. A claim with no (implied) limitation to a technical use would routinely raise concerns with respect to the principle that the claimed subject-matter had to be a technical invention over substantially the whole scope of the claim (G 1/19, point 98; see also points 124 and 128).

2.7 Hence, in the case of a computer-implemented invention, a technical effect relevant for the assessment of inventive step exists if the features of the claim directly achieve a (real) technical effect on physical reality (including both external physical reality and the “internal” physical reality of the computer system in which the invention is implemented).

In addition, an “implied” technical effect relevant for the assessment of inventive step is present if the claimed invention or the data produced by it necessarily achieves a real technical effect when it is put to its intended (and only relevant) use.

In contrast, merely providing calculated data which corresponds closely to technical effects of physical entities is not a technical effect relevant for the assessment of inventive step.

2.8 It follows that the data produced by the method of claim 1, which reflects the behaviour of a crowd moving through an environment, does not contribute to a technical effect for the purpose of assessing inventive step. Indeed, the potential use of such data is not limited to technical purposes, as it can be used in computer games or presented to a human for obtaining knowledge about the modelled environment, to give just two examples of non-technical uses that are within the scope of the claim.

2.9 The subject-matter of claim 1 of the main request therefore lacks inventive step (Article 56 EPC).

The Board then considered the fourth auxiliary Request which relates to the method of designing a building using the pedestrian simulation.

  • Claim 1 of the Fourth Auxiliary Request - amendments emphasised in Bold

4.1 In claim 1 of the fourth auxiliary request, the simulation method of claim 1 of the third auxiliary request is claimed as part of a design process. The claim includes a step of revising a designed model in dependence upon the simulated movement of pedestrians through the modelled building structure. The description of the application makes it clear that the revising step may be performed by a human designer operating a CAD program (see e.g. page 70, lines 7 to 9, of the published application).

4.2 According to the order of decision G 1/19, 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.

The Enlarged Board considered that a design process was normally a cognitive activity (G 1/19, point 143). It saw no need for the application of special rules if a simulation was claimed as part of a design process (point 144).

4.3 Since the added revising step may be carried out by a human, an inventive step in the subject-matter of claim 1 still cannot reside in the implementation of the method on a computer.

4.4 In addition to producing data reflecting the behaviour of a crowd moving through an environment, now as an intermediate result, the method of claim 1 produces data representing a (revised) model of a building structure.

4.5 The board notes that data representing a model of a building structure may be used for a variety of non-technical purposes, for example in a video game, and therefore has no “implied technical use“.

For this reason alone, the claimed simulation still does not contribute to a technical effect.

4.6 The board also notes that the simulation does not influence the designed model in any technical manner, since the claim leaves it entirely up to the human designer as to how to revise the model “in dependence upon movement of the pedestrians”. This is another reason why the simulation in the context of claim 1 of the fourth auxiliary request does not contribute to a technical effect.

4.7 Hence, the subject-matter of claim 1 of the fourth auxiliary request lacks inventive step (Article 56 EPC).

The applicant also filed claims as a seventh auxiliary Request which ensured that the invention used measured data as input data.

  • Claim 1 of the Seventh Auxiliary Request - amendments emphasised in Bold

7.1 The appellant submitted that the features added to claim 1 of the seventh and eighth auxiliary requests ensured that the claimed invention used measured data as input data. The Enlarged Board had pointed out that technical effects could occur at the input of a computer-implemented process and that technical input could consist of a measurement. Moreover, it had been recognised in decision T 1892/17, Reasons 2.1.4, that a simulation based on measurements did not produce a purely virtual effect. The added features had the effect of providing a more accurate simulation.

7.2 The board first notes that, even if the added features credibly improved the accuracy of the simulation, this alone could not establish a technical contribution made by the simulation. As the Enlarged Board stated in point 111 of its decision, 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”.

7.3 Claim 1 of the seventh auxiliary request does not include an actual step of measuring but only specifies that the attributes of the pedestrian profile have been measured, i.e. obtained by some measurement in the past. It is questionable whether this feature has a limiting effect, since whether data has been generated by a measurement or by some other method is not a property of the data itself.

However, for the sake of argument, the board will interpret claim 1 of the seventh auxiliary request as including a step of generating the attributes of the pedestrian profile by means of measurements, and it will assume that these measurements are carried out using technical means (and not just by observing and counting pedestrians passing through various building structures).

7.4 With this interpretation, the method of claim 1 consists of a technical step of measuring attributes of pedestrians to provide pedestrian profiles followed by the (computer-implemented but otherwise) non-technical simulation method of claim 1 of the first auxiliary request.

The question to be answered is whether the technical step and the simulation method are not merely juxtaposed, the output of the measuring step serving as an input for the simulation method, but interact to produce a combined technical effect (see decision T 154/04, OJ EPO 2008, 46, Reasons 5, under (F)). An interaction may be present, for example, if the combination amounts to an indirect measurement of a specific physical entity by means of measurements of another physical entity (see G 1/19, point 99). This is in line with decision T 1892/17, which found that the simulation features interacted with the technical features of the claim to contribute to a specific technical effect (see Reasons 2.1.4).

7.5 The method of claim 1 provides information about the movement of simulated pedestrians through a modelled building structure. Since the calculated information is neither used in a further step of the method nor specifically adapted for the purposes of an intended technical (and only relevant) use, it has to be investigated whether the information represents a measurement of a physical entity.

The modelled building structure does not correspond to a building structure that was measured, whether directly or through measurement of its physical effects on other physical entities. In fact, the modelled building structure need not correspond to any existing building structure.

Nor does the calculated information about the movement of simulated pedestrians represent a direct or indirect measurement of any of the real pedestrians (or other physical entities) that were measured in the process of generating the pedestrian profiles. The group of simulated pedestrians does not necessarily correspond to the set of measured entities, as their profiles need only be “based” on a set of measured attributes. For example, the value for the “preferred walking speed” attribute in each pedestrian profile may have been randomly drawn from a probability distribution derived from a statistical analysis of actual measurements of a large number of individuals (as described on page 15, lines 10 to 19, of the description). In this case, none of the modelled pedestrians corresponds to any of the pedestrians involved in the measurements.

Hence, in the present case no physical entity (or process) can be identified which could potentially be measured by the method of claim 1 in the sense that its physical status or some physical property is described by information calculated on the basis of data obtained by a direct or indirect physical interaction with the entity.

It therefore does not need to be determined whether the information calculated by the method of claim 1 – essentially the trajectories of simulated pedestrians moving through a modelled environment – is of the kind that could describe such a technical status or properties.

7.6 Since the technical step of measuring attributes of pedestrians cannot independently support an inventive step and does not interact with the other features of the claim to provide a combined technical effect, the subject-matter of claim 1 of the seventh auxiliary request lacks inventive step (Article 56 EPC).

The applicant had also filed claims with a tenth and eleventh Auxiliary request which relates to a method of controlling the movement of an “autonomous entity” through an environment, the entity being a robot (such as a cleaning robot for example).

However, these claims were different from those discussed and were originally dropped when entering EP regional phase. Therefore, the Board did not admit the requests as they considered it to represent a switch of the claimed invention which was deliberately not prosecuted in the first-instance proceedings.

Therefore, the appeal was dismissed and the patent application was refused.

More information

You can read the whole decision here: T 0489/14 (Pedestrian simulation/BENTLEY SYSTEMS) of November 26, 2021 of the Technical Board of Appeal 3.5.07

Stay in the loop

Never miss a beat by subscribing to the email newsletter. Please see our Privacy Policy.

* = Required field

Please share this article if you enjoyed it!