G1/19 – The Patentability of Computer-Implemented Simulations

By Andrew Rudhall, Associate

On July 15, 2020, the Enlarged Board of Appeal (EBoA) of the European Patent Office held a hearing regarding the patentability of computer-implemented simulations. Although no decision has been made yet, the decision of the EBoA is highly anticipated by many stakeholders due to the growing significance of computer simulations in product design.

The European patent application which resulted in the referral to the EBoA relates to a method of simulating movement of, for example, a pedestrian crowd through a building such as a railway station or stadium. The simulation may be used to design the building in such a way that takes into account the simulated movement of the pedestrian crowd. For example, the simulation may provide a more accurate and realistic model of how real-world crowds move in a building. The design of the building can then be updated as a result of the simulation to improve the building design process.

After being examined, the European patent application was refused due to apparently lacking an inventive step. However, this decision was appealed and may ultimately result in a patent being granted. During the appeal, certain issues were raised concerning whether or not the claimed invention provides a technical effect, which would be indicative of the invention involving an inventive step.

The preliminary view of the Board of Appeal (BoA) was that a technical effect requires, at a minimum, a direct link with physical reality, such as a change in, or a measurement of a physical entity. A direct link with physical reality may not be obviously apparent in a simulation. In spite of this, there is case law to support a different approach to examining inventive step of computer-implemented simulations and this was discussed during the appeal. In particular, the appellant argued that modelling pedestrian crowd movement in an environment constituted an adequately defined technical purpose for a computer-implemented method.

In view of the issues raised during the appeal, the BoA decided to refer the follow questions to the EBoA for decision:

  1. In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation’s implementation on a computer, if the computer-implemented simulation is claimed as such?
  2. If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?
  3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?

During the hearing before the EBoA, the admissibility and issues raised by these questions was discussed. Although it is not possible to predict the EBoA’s decision, it is hoped that the EBoA will provide further guidance regarding the approach to be taken when assessing the inventive step of inventions which relate to computer-implemented simulations. Such guidance may provide greater certainty to stakeholders such as patent applicants and third parties concerned with the patentability of computer-implemented simulations.