In this chapter the interpretation of the Enlarged Board of Appeal in G1/19 regarding certain terms of the referred questions is shown. The following is based on points 44 to 53 of the decision G1/19.
“COMPUTER-IMPLEMENTED SIMULATION” AND “COMPUTER-IMPLEMENTED METHOD OF MODELLING”
The referred questions refer to “computer-implemented simulations” while the claims of all requests underlying the referring decision, except for the fourth auxiliary request, refer to “computer-implemented methods of modelling”. All claims filed during the examination proceedings and underlying the refusal decision of the examining division refer to simulations only. The claims filed with the statement setting out the grounds of appeal distinguished between methods of “modelling pedestrian crowd movement” and “simulating movement of a plurality of pedestrians”. The appellant did not give specific reasons for its shift from “simulation” to “modelling”, except for its references to the originally filed application, in which the invention is described as relating to “a method of simulating movement of an autonomous entity through an environment, for particular but not exclusive use in a method of modelling pedestrian crowd movement” (page 1, lines 4 to 6). Thus, “simulating” is used for the simulation of the movement of one or more individual pedestrians and “modelling” for the simulation of the movement of an aggregate (or “crowd”) of pedestrians (see e.g. claim 1 of the main request underlying the referring decision, point A.IV above). It is assumed that the appellant used “modelling” and “simulating” interchangeably in its claims.
Accordingly, in the referred questions, the referring board refers only to “simulations”. Apart from when quoting the appellant, the referring decision refers to “model” or “modelling” only in the context of modelling the system to be simulated (model of the pedestrians or of the environment). According to the definition in point 21 of the Reasons of the referring decision, a simulation is
“an approximate imitation of the operation of a system or process on the basis of a model of that system or process”.
Thus, establishing a model is a prerequisite for any simulation.
“TECHNICAL SYSTEM OR PROCESS” AND “TECHNICAL PRINCIPLES UNDERLYING THE SIMULATED SYSTEM OR PROCESS”
The referred questions in G1/19 concern the patentability of computer-implemented simulations of a “technical system or process”, i.e. of a system or process that may be considered “technical” within the meaning of Article 52 EPC.
A “technical system or process” implies that an object is created or a process is run with some purpose based on human creativity. As a contrasting example, the weather is not a technical system that the skilled person can improve but a physical system that can be modelled in the sense of showing how it works (see T 1798/13, Catchword). However, in the modelling or simulation of a system or process, the same laws of nature and mathematical foundations are applicable, regardless of whether the system or process is natural or technical. In both cases, the scientific (e.g. mathematical and physical) principles are applied within the boundaries set by the (natural or technical) system or process to be examined.
The application underlying the referral of G1/19 concerns the simulation of a process modelled not only using physical, measurable technical parameters but also human factors such as “dissatisfaction function”, “inconvenience function” and “frustration function”. However, the referring board has explained why it accepted that the simulated processes were technical (see Reasons, point 10 of the referring decision, in which the appellant’s argument was accepted that pedestrians’ movements could be described similarly to the movements of electrons). The Enlarged Board in G1/19 does not intend to deviate from the referring board’s interpretation. The terms “technical system or process” and “technical principles underlying the simulated system or process” should be interpreted broadly. In the referral, they do not relate to the simulation or its patentability, but the system, process and principles reflected by the simulation.
“TECHNICAL PROBLEM” AND “TECHNICAL EFFECT GOING BEYOND THE SIMULATION’S IMPLEMENTATION”
The terms "technical problem" and "technical effect going beyond the simulation’s implementation" relate to simulation-related inventions and their patentability. Whether a simulation can solve a technical problem by producing a technical effect which goes beyond the simulation’s implementation on a computer, can be understood only in the context of the COMVIK approach. Starting from the closest prior art, the invention has to fulfil these criteria (or have “technical character”) to qualify as a technical invention.
The features distinguishing the claimed invention from the closest prior art need to contribute to such technical character in order to be considered under Article 56 EPC. If the invention does not solve a technical problem, it has no distinguishing features which could contribute to inventive step.
The criterion “technical effect going beyond the simulation’s implementation” is understood to mean any “further technical effect” going beyond the “normal” physical interactions between the program and the computer on which the simulation is run (see T 1173/97, Reasons, point 13; G 3/08, Reasons, point 10.2.1).
Any technical effect going beyond the normal electrical interactions within the computer on which the simulation is implemented may be considered for inventive step. According to the reasoning of the COMVIK approach, such effects would typically be “technical effects on a physical entity in the real world” (see the wording of question 3 in G 3/08) or technical effects requiring “a direct link with physical reality” (see referring decision, Reasons, point 11), but they could also be other effects such as technical effects within the computer system or network (achieved e.g. by adaptations to the computer system).
The “technical effect going beyond the simulation’s implementation” can therefore be rephrased as follows:
“technical effect going beyond the simulation’s straightforward or unspecified implementation on a standard computer system”
which may therefore contribute to an inventive step in the context of the problem-solution approach.
“COMPUTER-IMPLEMENTED SIMULATION AS SUCH”
The term “simulation as such” echoes Article 52(3) EPC, which excludes “non-inventions” according to Article 52(2) EPC only to the extent that they are claimed “as such” (for the background to the provision see e.g. T 1924/17, Reasons, points 17 to 19.4). However, simulations cannot be considered another “non-invention” alongside those listed in Article 52(2) EPC. Otherwise “simulations as such” would automatically be excluded from patentability.
The referring decision also uses the term “a simulation in the strict sense”, described as an approximate imitation of the operation of a system or process based on a model of that system or process. In the case of a computer-implemented simulation, the model exists only on the computer and the simulation makes it possible to assess or predict the functioning of the modelled system or process (Reasons, point 21). On this basis, the Enlarged Board in G1/19 understands:
a computer-implemented “simulation as such” to be a simulation process comprising only numerical input and output (irrespective of whether such numerical input/output is based on physical parameters), i.e. without interaction with external physical reality.
On this, see also the definition given in the written comments of the President of the EPO in G1/19 at footnote 16, and re-stated as follows by the President’s representative during the oral proceedings: “claims not including steps preceding the simulation or following the simulation”. Hence, physical simulations (such as wind tunnel experiments) are not simulations as such; neither are processes which include the measurement of physical values (such as temperature distributions) which are then used for simulations in subsequent process steps (see T 438/14 – Method and IR-camera for determining the risk of condensation).