Renewable energy is more affordable now than it has ever been. According to BloombergNEF, it is now cheaper to build a new solar or wind farm to meet rising electricity demand or replace a retiring generator, than it is to build a new fossil fuel-fired plant. Policy incentives, increased investment and technological advances are driving this strong growth in the renewables sector, leading to technological improvements in the structural hardware necessary for renewable energy generation, transmission and storage.
But innovation in these fields is not limited to improvements in the hardware; digitisation is key to maximising efficiency in the future energy system, and much innovation in the renewable energy space relates to software simulations and big data analytics that underpin this. Sophisticated simulations allow for component and system design optimisation before manufacture, driving down costs at the R&D stage. Simulations also allow the operation of a renewable energy plant to be modelled under different conditions, with a range of benefits, including the ability to assess the suitability of different sites, and controlling operation to optimise performance.
For example, the National Renewable Energy Laboratory (NREL) in the US have developed simulation software which allows users to investigate effects of weather patterns, turbulence, and complex terrain on the performance of wind turbines and plants. Through the use of the software, NREL found that optimising yaw control and the relative positioning of individual turbines improved the power performance of downstream turbines by mitigating the interference that wind turbines in an array have on each other.
Simulation and optimisation in component design and plant placement are equally vital in solar energy, and in both fields, forecasting has a significant role to play in allowing the grid to accommodate the inherent variability of the supply. Digitisation in the form of simulations and big data analytics will also facilitate the integration of microgrids and distributed energy resources – diverse energy resources including rooftop solar panels, battery storage, smart meters and controllable loads like electric vehicles, to promote efficiencies and help balance the grid.
Patenting Simulations in the UK and Europe
Patent protection for physical devices is well understood. If the device is new and inventive over what has gone before, a patent can generally be granted. However, patent protection for software is much more complicated, with the result that the use of patents to protect innovation in this field is often overlooked.
In the UK and Europe, simulations, and software in general, are not guaranteed to be eligible for patent protection, because a European patent can only be granted for an “invention” that provides a technical solution to a technical problem. This definition of an invention does not cover programs for computers, mathematical methods and mental acts (which cover simulations in their purest form), as these are not considered to be inherently technical. However, in practice, software innovations that are directly linked to a physical, technical effect in the real world, may be patented so long as they clear the usual hurdles of being new and involving an inventive step.
But what does this mean for simulations, where the innovation resides in modelling real world technical applications on a computer? Is it possible to protect such simulations via a European patent without a direct physical link to the real world?
A landmark decision on patenting simulations – G1/19
A few weeks ago, the Enlarged Board of Appeal of the European Patent Office (EPO) issued a landmark decision “G1/19”, on the extent to which computer-implemented simulations are patentable in Europe (previously reported here). The patent application in question concerned a computer program for simulating the movement of a pedestrian through an environment, the main purpose of the simulation being its use in designing a venue such as a railway station or a stadium.
The decision confirmed that computer-implemented simulations should be considered in the same way as any other computer-implemented process, but went on to clarify that the simulation does not need to have a direct link to physical reality, and there is no need for the simulated system to be inherently technical.
Before G1/19 there was doubt as to whether a simulation could fulfil the EPO’s criteria of involving an inventive step without including a direct link to a physical process or system. This is because under European practice, a computer-implemented invention must produce a technical effect when run on a computer. Generally, a technical effect could be found in anything that goes beyond the “normal” physical interactions between computer software and computer hardware. This leads to the suggestion that a simulation could only be patentable if it provided a technical effect on a physical entity in the real world: for example, when the simulation controls a technical process, such as yaw control for a wind turbine. However, in G1/19 it is indicated that there is no strict requirement for the claim to explicitly link the output of the simulation with external physical reality (such as a step of controlling a device based on the output of the simulation), provided the claim implies the technical use of the simulation’s output.
What does this mean for simulations in the renewable energy space?
Where patent protection for a computer simulation is sought, success is more likely if the scope of protection defined by the patent claims can be explicitly limited to a physical application in the real world. However, it is not always desirable to limit the scope of protection in this way. For example, where the simulation and the real world application would typically be performed or used by different parties or in different jurisdictions. G 1/19 may be helpful in these circumstances because it suggests that an implied technical use may be enough.
By way of example, in coming to their decision, the Enlarged Board in G 1/19 endorsed an earlier EPO decision (T 625/11) which concerned a software simulation for establishing a limit value for an operational parameter of a nuclear reactor. The calculation of the limit value based on a simulation of the reactor was held to contribute to the technical character of the claim, even though the use of the value in the operation of a real world nuclear reactor was not directly specified. Here, it seems that the reference to “an operational parameter of a nuclear reactor” was enough to imply physical control of a real would reactor, even though that physical control was not explicitly claimed.
G 1/19 also gives the example of weather forecasting. While improved weather forecasting is not patentable on its own, or when directed to the forecasting of a financial product, it “probably” would be patentable if the weather forecasting data is used, for example, to automatically open or close window shutters on a building.
By extension of these examples, it would seem that an improved weather forecasting simulation used to control the operation of a wind farm, for example, could be patentable. Moreover, it may be enough to specify the generation of a control signal or an operational parameter for controlling the wind farm, without explicitly claiming aspects of the wind farm, or the steps performed at the wind farm.
G1/19 represents a significant finding for the any industry which utilises simulations, including the renewables sector, where it may not be desirable to limit patent protection for a simulation by specifying a direct link with a physical device in the real world. For simulations to be patentable, it appears that it may be sufficient in the future that the simulation is implicitly for a technical purpose.
In practice, such arguments might be more persuasive if the intended further use of the simulation output data can be clearly signposted in the patent claims. Moreover, while a direct link to physical reality is not required to patent a computer-implemented simulation in Europe, it is still worth including such a feature as a fall-back position when drafting patent applications.
At Reddie & Grose, our attorneys have extensive experience drafting and prosecuting patent applications in the UK and Europe and around the world, and are well placed to advise on the IP challenges faced by innovators in the renewable sector.
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