b) Simulations/modelling 

As already set out in this chapter I.D.9.2.4, in G 1/19 the Enlarged Board expressed a clear opinion on the patentability of simulations. The Enlarged Board held that a computer-implemented simulation of a technical system or process that is claimed as such 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. 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. Since that decision, the case law of the boards of appeal has dealt with the implementation of G 1/19. The relevant decisions are summarised below.

(i) Case law after G 1/19: technical effect denied

In T 1371/16 the board applied G 1/19. The claim concerned an apparatus for computer aided design of a wire harness wiring path which outputs "data on corrected wiring path" as a final result. The claimed subject-matter was thus analogous to a computer-implemented simulation of a technical system. The board referred to the criteria established in G 1/19, according to which, if a claimed process results in a set of numerical values, it depends on the further use of such data whether a resulting technical effect can be considered in the inventive-step assessment. If such further use is not, at least implicitly, specified in the claim, it will be disregarded for this purpose. Calculated numerical data reflecting the physical behaviour of a system modelled in a computer usually cannot establish the technical character of an invention even if the calculated behaviour adequately reflects the behaviour of a real system underlying the simulation. Only in exceptional cases may such calculated effects be considered implied technical effects. Citing decision G 1/19 the appellant had argued that the claim specified at least implicitly a further use of the designed wire harness which had an impact on physical reality, and therefore fulfilled the requirements expressed in G 1/19, point 137 of the Reasons. The board was not convinced. It concluded that the data produced by the apparatus of claim 1 was not limited to a further technical purpose and did not contribute to an "implied" technical effect.

In T 3226/19, the claim specified a calculation of numerical data concerning the opportunity in a reservoir system for an objective variable over different time horizons, but did not specify any further use of the calculated data. The board stated that the claim did not limit its subject-matter, either implicitly or explicitly, to a further technical use of the calculated numerical data. Other uses, for instance in management, were also within the scope of the claim. The appellant's argument that the claimed method had a technical purpose because it determined a technical variable from a technical system could only hold if the method were considered a measurement method, which the board found it was not.

In T 2660/18 the appellant cited decision T 625/11, in which the board concluded that the determination, as a limit value, of the value of a first operating parameter conferred a technical character to the claim which went beyond the mere interaction between the numerical simulation algorithm and the computer system. The nature of the parameter thus identified was, in fact, "intimately linked to" the operation of a nuclear reactor, independently of whether the parameter was actually used in a nuclear reactor (T 625/11, Reasons 8.4). The board in T 2660/18 was of the opinion that, in the case at hand, no technical effect was achieved by the method's functionality as the method merely produced a test rod pattern (i.e. a fuel bundle configuration) design and data "indicative of limits that were violated by the proposed test rod pattern design during the simulation". Contrary to case T 625/11, here no parameter was identified that was "intimately linked to" the operation of a nuclear reactor. A rod pattern design appeared to have non-technical uses such as for study purposes. These were "relevant uses other than the use with a technical device", and therefore a technical effect was not achieved over substantially the whole scope of the claimed invention (G 1/19).The data "indicative of limits that were violated by the proposed test rod pattern design during the simulation" did not, or at least did not entirely, reflect the physical behaviour of a real system underlying the simulation (G 1/19).The board noted that, due to the breadth of the wording of claim 1 of the main request, the obtained rod pattern design might violate any number of limits by an almost unlimited amount. Hence, this was not an "exceptional case" in which calculated effects could be considered implied technical effects.

In T 2014/21 the board pointed out that establishing a model was a purely mental act (see G 1/19). Consequently, improving such a model, e.g. in terms of accuracy, also represented a purely mental act and thus corresponded to a non-technical problem.

T 2594/17 and T 2607/17 concerned the simulation and design of a virtual weldment method for training purposes. The appellant had argued that the claimed system processed virtual weldments and was thus part of a virtual reality system (VRAW system), which is a technical system. It constituted a "feedback component" of the VRAW system, resulting in generating virtual weldments of a better quality, which could be tested. They could for example be integrated in a simulated bridge and the testing could involve simulations of the bridge over time in order to estimate whether the quality of the weldment would influence the life time of the bridge. The board held that the claims did not define or suggest any connection or relation of the claimed system with the VRAW system and that there was no feedback loop. There was thus no direct causal link between the simulation results and the test system. According to G 1/19 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. Thus, even if the computer-simulated testing of the virtual weldment were to be carried out within a computer-simulated simulation of a bridge (the bridge having incontestably sufficient technical character), this would not have had any influence on the assessment of inventive step of the features of the claimed invention. Summarising, the board held that the claimed system differed from a notoriously well-known general purpose computer in that it was configured to display images of virtual weldments, of virtual testing of those virtual weldments, and of the results of the virtual testing on those virtual weldments. It could also determine a pass/fail condition based on those results.

Those differences related only to the cognitive content of the images and the board did not consider them to be technical features.

T 1892/17 concerned the simulation of an electric power system for optimising electric-power consumption. Claim 1 differed from the closest prior art in that characteristic time curves of the consumption of electric power by the individual consumers were determined and a plan was made for apportioning electric power to the concsumers on the basis of those curves. The board held that claim 1 did not refer to a simulation as such. The claimed data processing or simulation was rather based on (real) measurements of consumed electric power in a technical system, resulting in a plan and a prognosis, which did not produce a purely virtual effect. Therefore, claim 1 was limited to a technical teaching, involving the specific technical use of the calculated characteristic time curves, plan and prognosis. In the assessment of inventive step – which was acknowledged by the board - all claimed method steps were taken into account.

In T 1035/18, the invention concerned a simulation for estimating net solar energy production for airborne photovoltaic systems. Fuel savings were estimated on the basis of different determined amounts of solar irradiance. The board considered that the question of whether or not the present case resembled that of T 1227/05 was moot in view of G 1/19, which superseded T 1227/05. According to G 1/19, whether a simulation contributes to the technical character of the claimed subject-matter does not depend on the degree to which the simulation represents reality; nor does it depend on the technicality of the simulated system. What counts is whether the simulation contributes to the solution of a technical problem. The board held that estimating the fuel savings for a flight was a non-technical administrative activity which could e.g. be used for business decisions. Therefore, estimations do not have an "implied technical use".

In T 2220/22, the application related to optimising the shape of a three-dimensional model, for automotive steel-sheet structures. The board held that a potential technical effect as the result of a specific "implied" use of the output data can be taken into account in the assessment of inventive step only if the output data has no non-technical other relevant uses (G 1/19). Here, however, the output data was displayed to the user and could be used, for example, in an iterative design process, which is a non-technical, cognitive activity (G 1/19). Moreover, the output data was not directly usable for building an automotive steel-sheet vehicle structure, as building the structure would normally require further steps, including cognitive steps.

In T 279/21 the invention related to a central control system for providing automated real-time interaction and state-transition-controlled processing of (data) objects. The invention was said, rather generally, to provide a system which was capable of flexibly capturing the external and/or internal factors that may affect the processing of an object within a workflow and that was more capable of being operated by externally or internally occurring boundary conditions or constraints. Furthermore, it was able to react dynamically to changing environmental or internal conditions or measuring parameters that were possibly not known or predictable at the beginning of the workflow process, in particular without human interaction. The examining division had argued, that the claimed subject-matter related to abstract information modelling concepts at meta-language level in the context of workflows. They had pointed out that the design and modelling of workflows for business processes represented activities in the sphere of methods for doing business.

The appellant had argued that when G 1/19 (e.g. at point 51 of the Reasons) stated that any technical effect going beyond the implementation of the process on a computer may be considered for inventive step, it meant anything beyond a 1:1 mapping between the implementation and a step of the business method being implemented. In other words, any subject-matter that does not "map" to a step in the business method is technical. The board agreed that the "implementation" of a business method implies some sort of mapping between non-technical steps of the business method and their technical realisation. Decision G 1/19 had something to say about this mapping, at least in the forward direction, at point 51, when it rephrased the requirement for technical effect as "technical effect going beyond the simulation's straightforward or unspecified implementation on a standard computer system". Thus, even a 1:1 mapping might be inventive if it is not "straight-forward" (e.g. not standard programming or routine modification of the technical means used), or "unspecified" (e.g. not simply as "means for [carrying out the step]"). But, according to the board, looking for a mapping from "implementation" to the step of a business method in the reverse direction did not make sense as the steps of the non-technical activity do not have to be specified explicitly. They would include any steps that the business person would come up with in a non-technical workflow. The way this was handled was by considering the mapping of the implementation to the effect of the step and to examine whether the effect had any technical character, or whether it would be covered by what the business person would consider as part of the non-technical process. This was, in other words, the standard COMVIK approach where one looks at the effect of a feature in order to pose a technical problem, which might simply be the implementation of the feature, for which the above-mentioned mapping in the forward direction meant in G 1/19 applied. Looking at the feature of the "operating tags" in the present case, the effect was to define business conditions determining whether a certain task shall be executed or not. This, of course, corresponded to a non-technical step of the workflow system, namely keeping track of the state of a process. Going forward again with the mapping in order to judge inventive step, the implementation was seen to be the use of "operating tags", which even if escaping the "unspecified" classification must surely be "straight-forward".

In T 687/22 the board held that a modification introduced solely for the sake of differentiation from the prior art simply means that, at most, the novelty requirement of Art. 54 EPC is met. This does however not guarantee compliance with Art. 56 EPC. To be considered "not obvious to a person skilled in the art", such a modification must, as a prerequisite, yield a discernible technical effect that credibly solves a technical problem. This is at least the case for electronic circuits, as in the case in hand, where a change in the processing chain might simply alter the way in which information is physically manipulated, without necessarily affecting a tangible, technical outcome.

(ii) ii) Case law after G 1/19: technical effect acknowledged

In T 1618/19 the claimed subject-matter related to a concrete apparatus, namely a blending control system in a refinery, and a corresponding method. The claimed blending control apparatus/method comprised a computer modelling apparatus/method. The modelling was performed for an active refinery process in an actual refinery. The feeding of the model with the input parameters (flow and product parameters of the "rundown components supplied from the splitter" and refinery product commitments) as well as the direct conversion of the simulation results ("blend recipes", "blend events", "blend timing", "split ratio") into output signals for the control of the blender and splitter in the refinery process could be considered technical inputs / outputs according to G 1/19, point 85 of the Reasons, and were therefore technical or had a technical effect.

The feeding of process parameters of a running process, i.e. the refinery process, into the simulation and the conversion of calculated process parameters into control signals were thus indications of a "direct link with physical reality" (G 1/19) and of a "further technical effect" that went beyond the mere technical implementation of the algorithm in a computer (G 1/19). Consequently, it was irrelevant whether the final step of implementing the optimisation results by means of control signals, i.e. to the splitter and blender, was explicitly claimed (as would be recommended in principle according to G 1/19), if the skilled person understood from the wording of the claim, that the simulation results were directly converted into control signals of the splitter and blender, as was the case here.

In T 1422/19 the claimed method measured "raw" information about a running web browser and processed this information to produce an estimate of a technically meaningful parameter. The board held that such an indirect measurement was normally of a technical nature and that finding a way to "circumvent a technical problem" may well form the basis for a patentable invention.

In T 182/20 and T 1557/20 the invention concerned predicting future malfunctions of mechanical or electrical components based on the current values of one or more parameters.

Beyond the server-based processing, the method in claim 1 comprised a number of technical features. Firstly, the method involved measuring specific parameters (e.g. temperature and lubricant condition in the bearings of a gas turbine), which the board considered to be inherently technical (G 1/19, points 85, 99 of the Reasons). Furthermore, these measurements were used to predict specific malfunctions in particular components (e.g. a bearing defect in a gas turbine or an insulation defect in a transformer). The board considered that the choice of parameters for predicting the specified malfunctions reflected technical considerations about the functioning of the claimed mechanical or electrical components.

On the other hand, the mathematical calculations in steps 3) and 4), when considered in isolation, were non-technical. These computations generated numerical data, i.e. the conditional probability of a future malfunction in an electrical or mechanical component and the question remained, whether these calculations contributed to the technical character of the invention. With reference to G 1/19 the board saw the conditional probability obtained by the method of claim 1 as an indirect measurement of the physical state (i.e. a particular failure) of a specific physical entity (i.e. a specific mechanical or electrical component). The mathematical framework in the claim is rooted in stochastic modelling and simulation, specifically Markov chains, which are recognised for credibly capturing and predicting the transition dynamics of systems based on empirical data.

In T 1304/22, although the examining division had not questioned that pain reduction was in principle a technical therapeutic effect, it was not convinced that such an effect was credibly achieved in the case at hand. The major point of disagreement between the appellant and the examining division in the case at hand was whether "pain reduction" could be recognised as the technical effect of a virtual reality system, i.e. a system providing "presentation of information", and the level of proof required to credibly demonstrate "pain reduction" as a technical effect. It essentially considered any effect achieved by displaying a virtual reality scene to a patient to be psychological, subjective and speculative, as opposed to the effect of analgesics. It questioned the causal relationship between virtual reality and pain reduction, in particular noting that some patients in the study group did not report any alleviation of their symptoms.

However, the board held that it is not surprising that not all patients respond in the same way to a therapy. Nor was there any objective reason to question whether virtual reality could lead to a therapeutic effect, especially in view of the fact that already the prior art documents cited by the examining division, disclosed the use of virtual or augmented reality systems for therapeutic purposes. Therefore, although claim 1 was silent as to the details of the respective "digital models", the board, in the appellant's favour, accepted the technical effect and the objective technical problem as submitted by the appellant.