The Technical Board of Appeal 3.5.07 is uncertain whether a method of modelling pedestrian crowd movement in an environment and using the results for designing a building structure is technical or not. Here are the practical takeaways from the decision T 0489/14 (Pedestrian simulation/CONNOR) of 22.2.2019:
Key takeaways
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, in the present decision, the Technical Board of Appeal is 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.
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.
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Claim 1 (main request)
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Claim 1 (auxiliary request IV)
Is it patentable?
The EPO’s first instance examining division rejected the patent application by arguing that a simulation model is non-technical and that its implementation on a computer is obvious. In the appeal, the applicant argued in a nutshell that the method steps referring to the simulation algorithm are indeed technical because they relate to physical parameters (“humans cannot walk through a wall”). Moreover, the simulation according to the invention would have multiple similarities to the simulation of an electronic circuit which was considered technical in T 1227/05:
The application concerned modelling pedestrian movement, which could be used to help design or modify a venue. It sought a more accurate and realistic simulation of pedestrian crowds in real-world situations, which could not be adequately modelled by conventional simulators. The application was based, at least in part, on the insight that human interaction could be expressed and modelled in the same way as physical interactions.
In claim 1 of the main request, which was now directed to a method of modelling pedestrian crowd movement in an environment by means of simulation, the method steps contributed to the technical character of the invention in two ways. First, the method steps were themselves technical features, as they related to physical parameters which could be expressed in terms of physical quantities and involved applying physical laws of motion and considerations of cost or work. Second, they contributed to the technical character of the invention by virtue of their interaction with the computer. The method of claim 1 produced a technical effect in the form of a more accurate simulation of crowd movement. Following decision T 1227/05, modelling pedestrian crowd movement in an environment constituted an adequately defined technical purpose for a computer-implemented method. The claimed method yielded accurate and repeatable results no different from those produced by a method of modelling an electron using a similar numerical method. Moreover, the claimed simulation method was no more suited to being carried out mentally than the simulation method considered in decision T 1227/05.
According to the applicant, particularly claim 1 of auxiliary request IV would help clarify that a technical effect outside the computer is produced:
The third, fourth and fifth auxiliary requests helped clarify the effect outside the computer and emphasised that the process was one which could not be performed simply with the help of pencil and paper.
The board in case T 1227/05 had adopted a correct approach. It had recognised the importance of simulations and had understood the practical issues in claiming them. This approach had been followed in decision T 625/11 of 19 January 2017.
By the way, if you are interested in a deeper look into how the European Patent Office examines software-related inventions, this 30-minute video gives a concise overview of the “two hurdle” approach with lots of examples.
However, the Board in charge of this appeal expresses concerns about the correctness of T 1227/05 and raises doubts whether the invention underlying T 1227/05 produces a technical effect sufficient to constitute patent-eligibility:
11. 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. Such a link is not present where, for example, the parabolic trajectory followed by a hypothetical object under the influence of gravity is calculated. Nor can the Board detect such a direct link in the process of calculating the trajectories of hypothetical pedestrians as they move through a modelled environment, which is what is claimed here. In fact, the environment being modelled may not exist and may never exist. And the simulation could be run to support purely theoretical scientific investigations, or it could be used to simulate the movement of pedestrians through the virtual world of a video game.
15. In sum, the Board agrees with the appellant that decision T 1227/05 supports his case. However, the Board is not fully convinced by the decision’s reasoning. 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 [editor’s note: T 1227/05] appears to rely on the greater speed of the computer-implemented method as an argument for finding technicality. But 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 (see e.g. decision T 1670/07 of 11 July 2013, reasons 9).
The Board applies the same line of argumentation with respect to claim 1 of the fourth auxiliary request, which explicitly relates to a process for designing a building structure:
This amendment limits the claimed computer-implemented simulation to its use in a method of design. Since decision T 1227/05 essentially derives the technicality of a computer-implemented simulation from its significance for modern product development processes, this limitation arguably strengthens the appellant’s case. The amendment does not, however, change the Board’s present position that the claimed computer-implemented simulation does not contribute to a technical effect, as a direct link with physical reality is still absent.
Further, the Board recognizes the (economic) importance of computer-implemented numerical simulations, but is hesitant to base its decision on such considerations:
There is no doubt that the significance of numerical development tools has increased even more since case T 1227/05 was decided, yet the Board is hesitant to base its decision on policy considerations relating to the appropriate scope of patent protection that have not been expressed by the legislator and have in fact arisen only since the relevant provisions of the EPC were enacted (the Diplomatic Conference for the revision of the EPC in 2000 not having materially changed them). The Board is aware that the legislator deliberately refrained from defining the terms “technical” and “technology” in order not to preclude adequate protection being available for the results of future developments in fields of research which the legislator could not foresee (cf. decision G 2/07, reasons 6.4.2.1), but it sees a difference between the emergence of a new field of innovation and a change in the perceived significance of an existing field.
As a result, the Technical Board of Appeal formulated three questions to be referred to the Enlarged Board of Appeal and consequently postponed the decision:
“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?”
More information
You can read the whole decision here: T 0489/14 (Pedestrian simulation/CONNOR) of 22.2.2019.
This case has also been discussed on The IPKat, the Kluwer Patent Blog and Lexology.