Patentability of computer simulations

19 Jul Patentability of computer simulations

Patentability of computer simulations: decision G1/19 of the EPO’s Enlarged Board of Appeal

On March 10, 2021, the Enlarged Board of Appeal of the European Patent Office (EPO) rendered its long-awaited decision in case G1/19 concerning the patentability of computer simulation methods. Reassuringly for interested parties, this decision confirms the application of the now well-established case law on computer-implemented inventions to these methods, without any additional requirement that the simulated/modelled system itself be technical in nature.

The case at the origin of the referral to the Enlarged Board concerned the patentability of a simulation method for studying the movements of pedestrians through an environment, with a view to designing a building (in this case a railway station concourse) with suitable characteristics. Although the Examining Division of the EPO had initially not accepted the patentability due to a lack of inventive step, the competent Board of Appeal, seized after an appeal by the applicant, then submitted three preliminary questions to the Enlarged Board of Appeal regarding the patentability per se of computer simulations[…]

Indeed, some previous decisions of the Boards of Appeal seemed to go beyond the framework defined for assessing the patentability of computer-implemented inventions in general, by admitting the patentability of computer simulation processes only on the additionnal condition that the subject matter of the simulation/modeling is itself a machine, a technical process or a technical system.

The decision rendered by the Enlarged Board of Appeal is finally more favorable since it confirms, in principle, the patentability of these processes without specificity concerning them:

“Like any other computer-implemented invention, digital simulations may be patentable if an inventive step results from characteristics that contribute to the technical character of the claimed simulation method” (see point 136 of the decision).

In this case, the Enlarged Board of Appeal considered that the so-called “Comvik” approach should be applied to simulations. This approach, which stems from the T641/00 decision of September 26, 2002, provides that in the context of so-called “mixed” inventions, i.e., inventions that include both technical and “non-technical” features, as is often the case for computer-implemented inventions, only the elements contributing to the technical character of the invention should be retained for the assessment of the inventive step. In other words, non-technical elements cannot contribute to the inventive step in relation to the state of the art.

The Enlarged Board of Appeal expresses, in substance, that it is not at all decisive that the simulated system or process has an interaction with the real world: “the simulation of a non-technical process can contribute to the technical character of the invention. On the other hand, it is possible that the simulation of a technical system does not contribute to the technical character of the invention” (see point 140 of the decision).

Finally, what should we retain from the G1/19 decision?

A simulation process can have a technical character if there is a direct link between the results of the simulation and the physical reality, but the Enlarged Board of Appeal specifies that such a link is not a necessary condition. Indeed, it is possible to perceive technical effects of a simulation, like any computer-implemented invention, when the simulation requires an adaptation, at the hardware or software level, of the computer that runs it.

In summary, this solution is favorable to authors of computer-implemented inventions since it confirms the non-exclusion from patentability of simulation methods as such, regardless of the technical or non-technical character of the system or process simulated. Nevertheless, such methods must meet the same level of requirements as all computer-implemented methods, and thus can only be patented if they contain technical features that contribute to the inventive step compared to the state of the art.

The decisions cited:

EPO, Enlarged Board of Appeal, March 10, 2021, Case G1/19.

Decision of the Technical Board of Appeal 3.5.1, of 26 September 2002, T641/00.