Patentability of Simulations – an Update

By Andrew Sunderland, Senior Associate

Following the recent referral to the EPO’s Enlarged Board of Appeal, the EPO has issued a notice indicating that all pending proceedings before the examination and opposition divisions at the EPO, which depend entirely on the decision of the EBA, will be stayed until the decision is issued. Therefore, applicants and opponents should expect a long wait on some cases related to simulation technology.

Specifically, the EPO advises that this stay of proceedings concerns cases in which:

  • the assessment of inventive step requires deciding whether or not a computer-implemented simulation of a technical system or process, claimed either as such or as part of a design process, can be considered to produce a technical effect which goes beyond the simulation’s implementation on a computer (i.e. whether or not the simulation achieved can itself qualify as a technical effect for the purposes of assessing inventive step); and
  • the outcome of the proceedings depends entirely on how the Enlarged Board answers the points of law referred to it.

In this context, the term “simulation” is to be interpreted as meaning an approximate imitation of the operation of a system based on a model of that system.

If proceedings are stayed, the relevant division at the EPO will inform the relevant party. At the same time, any communications setting a time limit for a response will be withdrawn until the Enlarged Board has given its decision, after which the division will issue a communication concerning the resumption of proceedings.