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None of this is real: the patentability of computer simulations in Europe


29th Dec 2015

For computer programs to be patentable in Europe and the UK, they must generally address and solve a technical problem. Put into more everyday terms, this means making the computer on which the program is running, or the network in which the computer is situated, into a better computer or network.

Most computer simulations are not therefore patentable. No matter how accurately a simulation might model aspects of the real world, and no matter how useful the results of the simulation may be, the computer running the simulation is unchanged. It is no better a computer than before the simulation was run. However, that is not the whole story and there are some notable exceptions where patents for computer simulations have been granted.

Exceptions To The Rule (Europe)

The lead decision of the European Patent Office Technical Boards of Appeal is T1227/05 “Infineon Technologies”, in which the invention under consideration was a method of “circuit simulation” (more specifically, “a computer implemented method for the numerical simulation of a circuit with a step size delta which is subject to 1/f noise”).

The claims of the application defined a mathematical method for modelling a circuit having input and output channels, in which the performance of the channels could be described by particular equations. The simulation in this case was part of a process of circuit design, with circuits that satisfied the required design criteria then being manufactured. However, the claims were limited to the mere performance of a calculation, and were missing any step that involved interaction with the outside world, such a step for fabricating a circuit, or even outputting a control signal or instruction to a connected device. Even though the claims were limited to essentially abstract subject matter (a computer program performing a calculation), the claims were not found to be excluded subject matter.

The EPO decided that:

“specific technical applications of computer-implemented simulation methods are themselves to be regarded as modern technical methods which form an essential part of the fabrication process and precede actual production, mostly as an intermediate step. In that light, such simulation methods cannot be denied a technical effect merely on the ground that they do not yet incorporate the physical end product (point 3.4.2)”.

In other words, as the clear purpose of the claimed invention was to assist in the fabrication of an improved circuit this was sufficient to satisfy the requirement for a technical problem being addressed.

Exceptions To The Rule (UK)

In the UK, the Infineon Technologies decision has a parallel in the Halliburton decision of the Patents High Court, and in that decision, the UK judge drew some guidance from the Infineon decision discussed above. Here, the invention related to a method of designing a roller cone drill bit having optimum drill design parameters. Again, although the claim contained no step of actually fabricating a drill bit to the design, the court did not find the claim to relate to excluded subject matter. Specifically, the Judge found that:

“Designing drill bits is obviously a highly technical process, capable of being applied industrially. Drill bit designers are, I am sure, highly skilled engineers. The detailed problems to be solved with wear and ability to cut rock and so on are technical problems with technical solutions. Accordingly finding a better way of designing drilling bits in general is itself a technical problem.”

Analysis

Case law in the UK and Europe has typically demanded that claims (and their patentability) be construed only on the basis of what is explicitly recited in the claim. For this reason, many decisions that have found computer programs to be allowable have required some kind of direct connection between the claimed subject matter and the real world.

The Koch & Sterzel case T26/86 of the EPO Technical Board of Appeal is a good example. Here, while not relating to a simulation, a computer program that controlled an X-Ray apparatus was found allowable, because it directly controlled the imaging tubes of the X-Ray apparatus and made them operate more efficiently. Further, in the IBM case T435/91 entitled “Method for physical VLSI-chip design” the method claims to the design alone were found unpatentable, while those that contained the step of “materially producing the chip so designed” were allowed.

The Infineon and Halliburton cases are therefore notable as departures or at least developments in the existing case law. In both cases, despite the claimed inventions not directly connecting to the real world and ultimately still needing application in a separate method of fabrication, the fact that the claimed invention was an intermediate step in a highly technical process of design or manufacture seems to have been persuasive.

Highly Technical Processes

The reasoning in the Infineon and Halliburton cases is generally applicable to any simulations that are integral parts of “highly technical processes”. While this gives patent applicants seeking to patent a computer simulation grounds for arguing their case, it does not mean that all computer simulations are patentable merely by virtue of their inherent technical complexity.

T1806/07 in the name of SAP, related to a method of determining transport guidelines for example, and was refused on the basis that there was no adequately defined “technical purpose in the application” and there had been “no technical contribution by simulation”. The case actually related to supply chain management and involved an iterative simulation searching for optimal routes between product source locations and target (delivery) locations in order to minimise cost factors and maximise transport utilisation. The problem addressed here was in the field of logistics or economics, and the invention was regarded as an excluded invention in the area of business methods or business administration.

Conclusions

Simulations are, by their nature, virtual representations of the real world, and not what we would call real. However, where the results of the unreal simulation allow the manufacture of something in the real world to be more effective, the invention may be recognised as addressing a technical problem.

The patentability of computer simulations ultimately therefore depends on what the simulation is for. If the effect of the simulation is an improvement in an excluded field, such as a “scheme, rule or methods for doing business, performing a mental act, or playing a game” it will not be patentable. However, simulations that are involved in an industrially applicable area, and in highly technical processes, such as those found in the fields of electronic or mechanical engineering, will likely be allowed.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Author
Nick Reeve
Partner
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