EPO: The Patentability of Computer-Implemented Simulations

by Dr Simon Lud

The Enlarged Board of Appeal of the European Patent Office recently published and issued the eagerly awaited decision G 1/19 (Simulations). Therein, the Enlarged Board of Appeal applied the requirements that were defined by the established case law on computer-implemented inventions – as defined by the COMVIK approach, T 0641/00 (Two identities/COMVIK) – to computer-implemented simulations.

The question of technical character and hence the patentability of software, algorithms, and - in the present case - of computer-implemented simulations, whether without or with artificial intelligence, is of fundamental and increasingly growing importance with regard to the filling strategy and in risk management of patent disputes.

The Enlarged Board of Appeal confirmed that like any other computer-implemented method, also computer-implemented simulations may still solve a technical problem. Thus, for assessing inventive step of computer-implemented simulations, all subject matter claimed has to be regarded which contributes to the technical character of the invention and which forms part of the technical solution.

The Enlarged Board of Appeal stated that for computer-implemented simulations the inclusion of a manufacturing step would of course be an argument in favour of patentability according to the COMVIK approach. Interestingly, the Enlarged Board of Appeal specified, in an obiter dictum, that according to the COMVIK approach, it is not decisive whether the simulated system is technical or not. Rather, it is relevant whether the simulation of the system contributes to the solution of a technical problem and this question has to answered using the same criteria as for computer-implemented inventions in general. The Enlarged Board of Appeal further argued that the simulated system is translated into models and algorithms, and that the output of the mere simulation based on the models and algorithms at first is not per se technical as various amicus curiae briefs requested. However, the Enlarged Board stated that the output of the simulation is technical if any further use of the output data occurs either with human intervention or within a technical process.  Therefore, in a patent application, the described implementation of the invention should not be limited to a mere displaying of output values of the computer-implemented simulations.

The decision of the Enlarged Board of Appeal is highly remarkable, since in principle the patentability of computer-implemented simulations is affirmed. Practitioners will welcome the legal certainty that is provided with regard to the key question of technical character of computer-implemented simulations.

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