Argentina: New Referral To EPO's Enlarged Board Of Appeal To Decide On The Patentability Of Computer Simulations

Last Updated: 15 March 2019
Article by José Santacroce

On 28 February 2019, in its decision T0489/14 (Title of the invention: Simulation of the movement of an autonomous entity through an environment, Applicant: Connor, James Douglas) the EPO's Technical Board of Appeal (TBA) 3.5.07 (Chairman: R. Moufang) referred three questions relating to computer simulations to the EPO's Enlarged Board of Appeal (EBA).

The case concerns a simulation run on a computer, and the questions relate to the extent to which such a simulation can be considered to be based on technical principles.

The following questions were referred to the Enlarged Board of Appeal for decision:

  1. 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?
  2. 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?
  3. 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 invention disclosed in European patent application No. 03793825.5 (IPC: G06F17/50) relates to a computer-implemented method, computer program and apparatus for simulating the movement of a pedestrian crowd through an environment.

The main purpose of the simulation is its use in a process for designing a venue such as a railway station or a stadium. The application is based on the insight that human interaction can be expressed and simulated in the same way as interactions of physical objects.

Claim 1 of the patent application according to the main request of the applicant reads as follows:

"A computer-implemented method of modelling pedestrian crowd movement in an environment, the method comprising:

simulating movement of a plurality of pedestrians through the environment, wherein simulating movement of each pedestrian comprises:

providing a provisional path (9) through a model of the environment from a current location (6) to an intended destination (7);

providing a profile for said pedestrian;

determining a preferred step (112′), to a preferred position (123′), towards said intended destination based upon said profile and said provisional path, wherein determining said preferred step comprises determining a dissatisfaction function expressing a cost of taking a step comprising a sum of an inconvenience function expressing a cost of deviating from a given direction and a frustration function expressing a cost of deviating from a given speed;

defining a neighbourhood (29) around said preferred position (123′);

identifying obstructions in said neighbourhood, said obstructions including other pedestrians (21) and fixed obstacles (25);

determining a personal space (24) around said pedestrian;

determining whether said preferred step (112′) is feasible by considering whether obstructions (21, 25) infringe said personal space over the course of the preferred step (112′)."

The Technical Board of Appeal 3.5.07 is of the view that the claimed invention lacks inventive step over a general purpose computer on the following grounds (section 11 of the decision):

"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."

In the proceedings before the TBA, the applicant has cited the earlier decision T1227/05 (Circuit Simulation/Infineon Technologies"), relating to a computer-implemented method for the numerical simulation of an electronic circuit. T1227/05 states: "An electronic circuit having input channels, noise input channels and output channels, the behavior of which is described by a system of differential equations is a sufficiently determined class of technical subjects, the simulation of which can be a functional technical feature."

In other words, if the system or method to be simulated is sufficiently technical, then the simulation method itself is also a technical method and for the assessment of inventive step has to be compared with prior art simulation methods, not with the functioning of a general purpose computer.

The TBA consequently held that if the board were "to follow decision T1227/05, it would have to acknowledge that some or all of the steps of the simulation method of claim 1 contribute to a technical effect of the invention and could thus not be ignored when assessing inventive step" and that it "would hence be necessary to compare the invention with prior art other than a general-purpose computer."

The TBA, however, still found that it "would tend to consider the subject matter of claim 1 of the main request to lack inventive step over a general-purpose computer" since the claimed method would "assist the engineer only in the cognitive process of verifying the design of the circuit or environment, i.e. of studying the behavior of the virtual circuit or environment designed." And, "the cognitive process of theoretically verifying its design appears to be fundamentally non- technical."

The TBA therefore referred the case to the EBA for reconciling its own view (citing a number of other earlier decisions as support) with the inconsistent view of T1227/05.

The alleged inconsistency in the law that is the basis for the present referral relates to the fact that in decision T1227/05, the Technical Board of Appeal considered that the disclosed simulation method was part of a fabrication process (making an electrical circuit), and as such the invention could not "be denied a technical effect merely on the ground that it does not yet incorporate the physical end product". In the present case TBA 3.5.07 agrees that this earlier case is analogous, but raises concerns that the earlier case is effectively not reliable given the general legal background. Unlike electrical circuits simulations, which are based entirely on the laws of physics, simulation of a pedestrian crowd movement is only partly based on such laws, even if it may be simulated numerically. This referral seeks therefore clarity on whether the earlier case should be followed.

The outcome of the referral has implications far beyond computer simulations, but to Computer-Implemented Inventions in general, for example also to inventions related to Artificial Intelligence (AI) or Machine Learning (ML) to model systems and processes without necessarily controlling or interacting with physical means.

Source: www.epo.org

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions