T 2660/18 - Simulating a nuclear reactor (redux)

Key points

• In T0625/11, of January 2017,  the Board found that the features of a method of calculating a maximum value of an operating parameter of a nuclear reactor, involving simulation steps, provide a technical contribution. In the present appeal, the method also pertains to simulating a nuclear reactor, but the analysis has to be made under G 1/19.
• The Enlarged Board in G 1/19: "The Enlarged Board agrees with the findings of T 1227/05 and T 625/11 if they are understood as being that the claimed simulation processes in those particular cases possessed an intrinsically technical function. However, there are rather strict limits for the consideration of potential or merely calculated technical effects according to the COMVIK approach (see points E.I.d to E.I.g above). The often-quoted criterion of T 1227/05 that the simulation constitutes an adequately defined technical purpose for a numerical simulation method if it is functionally limited to that purpose should not be taken as a generally applicable criterion of the COMVIK approach for computer-implemented simulations, since the findings of T 1227/05 were based on specific circumstances which do not apply in general."
• The present Board:  A rod pattern design [as obtained with the method of claim 1]  appears to have non-technical uses such as for study purposes. These are "relevant uses other than the use with a technical device", and therefore a technical effect is not achieved over substantially the whole scope of the claimed invention (G 1/19, points 94 and 95).
• "The data "indicative of limits that were violated by the proposed test rod pattern design during the simulation" [as recited in claim 1] do even not, or at least do not entirely, reflect the physical behaviour of a real system underlying the simulation (see G 1/19, point 128).
• "The board notes 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 is not an "exceptional case" in which calculated effects can be considered implied technical effects (see decision G 1/19, points 94, 95 and 128)."
• "During the oral proceedings, the appellant [applicant] argued that the "Logikverifikation" decision of the German Federal Court of Justice (Case X ZB 11/98, GRUR 2000, 498) supported its view that the claimed subject-matter brings about a technical effect. However, the board referred the appellant to decision G 1/19, Reasons 124, which takes a different view. As the board endorses the reasoning provided in decision G 1/19, it is not convinced by the appellant's argument."
• The Board also notes that: "The board is of the opinion that, in the case at hand, no technical effect is achieved by the method's functionality as the method merely produces 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, no parameter is identified that is "intimately linked to" the operation of a nuclear reactor."
• This part of the reasons is necessary because the Enlarged Board in G 1/19 did not say that T 1227/05 and T 625/11 were wrong. Rather, the Enlarged Board approved T 1227/05 and T 625/11 based on the specific circumstances of those cases. So it is an entirely valid argument for an applicant/patentee to argue that the simulation method claim under examination is substantially the same as in  1227/05 or T 625/11 in particular in the sense that "the claimed simulation processes possesses an intrinsically technical function."

EPO T 2660/18

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t182660eu1.html

The Board in the headnote:

In case T 625/11, 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 is of the opinion that, in the case at hand, no technical effect is achieved by the method's functionality as the method merely produces 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, no parameter is identified that is "intimately linked to" the operation of a nuclear reactor. A rod pattern design appears to have non-technical uses such as for study purposes. These are "relevant uses other than the use with a technical device", and therefore a technical effect is not achieved over substantially the whole scope of the claimed invention (G 1/19, points 94 and 95). The data "indicative of limits that were violated by the proposed test rod pattern design during the simulation" do even not, or at least do not entirely, reflect the physical behaviour of a real system underlying the simulation (see G 1/19, point 128). The board notes 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 is not an "exceptional case" in which calculated effects can be considered implied technical effects (see decision G 1/19, points 94, 95 and 128).