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Computer-implemented simulations can be patented in Europe

October 26, 2021

The Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) recently issued decision G1/19 related to computer-implemented simulations, in which the established case law on computer-implemented inventions (the so-called COMVIK approach) is considered to also apply to computer-implemented simulations.

The decision is based on an appeal against refusal of the European Patent Application No.  03793825.5, which relates to a computer-implemented simulation of the movement of a pedestrian crowd through an environment, such as a building, in order to assess whether the design of the building meets certain requirements.

The application was refused by the Examining Division on the grounds that the invention lacked an inventive step, because the only technical feature was the computer system implementing the non-technical simulations.

The decision was appealed by the applicant and the Technical Board of Appeal, which was of the opinion that the claimed simulation method could not contribute to the technical character of the invention. They referred the case to EBoA, particularly questions on the patentability of computer-implemented simulations regarding whether the computer-implemented simulation claimed as such could solve a technical problem and produce a technical effect, in particular when the simulation is part of a design process, and then asked which should be the criteria for assessing that a technical problem is actually solved by the simulation.

The EBoA in its decision confirmed that the established approach taken in the COMVIK case (T 641/00) for assessing inventive step in computer-implemented inventions was also applicable to computer simulations. The COMVIK approach states that an invention needs to have a technical character or produce a technical effect in order to qualify as technical, particularly the features distinguishing the invention from the prior art have to contribute to the technical character to be considered for the assessment of the inventive step. The COMVIK approach permits the inclusion of non-technical features when assessing inventive step, but only when those non-technical features contribute to the technical character of the invention.

Specifically, the EBoA stated that computer simulations may be patentable as part of a system or process, or as part of a design process for verifying a design, and that when assessing inventive step, computer simulations can contribute to the technical character of an invention, and they should be assessed in the same manner as any other computer-implemented invention.

The technical character of a computer-implemented simulation can be achieved by different means, such as by a direct link with the physical reality of the output produced by the simulation, by other technical effects within the computer system, or by the simulation contributing to the solution of a technical problem (e.g. by providing technical information to a user, to be used to control a machine), even if the system being simulated is not a technical system.

Evidently, as in any other computer-implemented invention, and according to the COMVIK approach, once identified those features contributing to the technical character of the invention, the remaining patentability requirements, i.e., novelty and inventive step, still apply to them.

This decision is likely to lead to an increase in the number of filed patent applications related to computer-implemented simulations, including simulations of non-technical systems.

Article by Joaquim Ferrer.

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