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Computer-implemented simulations: their patentability finally confirmed!

The Enlarged Board of Appeal of the European Patent Office issued on March 10, 2021 decision G1/19, a decision that provides answers on the patentability of computer-implemented simulations.

As a reminder, the European patent application 03793825.5 (on the modelling and simulation of a crowd of pedestrians moving through a building) had been refused by the Examining Division for lack of an inventive step. The division indeed estimated that the technical character of the claimed simulation was only linked to its use through a conventional computer and that it could not thus be considered as inventive. The applicant appealed the decision, and the following questions were raised:

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. 2. [2A] 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? [2B] 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?

To the first question, the Enlarged Court of Appeal answers positively. According the the Court, inventions implemented by computers can technically not be excluded from patent protection. Simulations are to be viewed as other inventions implemented by computers, meaning using the COMVIK approach (T 641/00). What needs to be assessed is whether the claimed characteristics contribute to the technical character of an invention, with any “additional” technical effect (which means an effect that goes beyond the normal electric interactions within a computer) possibly taken into account to assess the inventive step. It is also important to note that the data entries and outputs of a simulation do not necessarily need to be linked to a physical entity, as technical effects could also happen in the computer (for example by specific adaptations of a computer).

The Enlarged Court of Appeal answers no to the second question: the fact that a simulation method is based, entirely or in part, on a technical system or process is not a required condition, nor a sufficient condition, for such a method to contribute to the technical character of an invention.

Finally, when it comes to the third question, the Court estimates that there is no ground to adopt a different analysis in the case of a simulation being part of a designing process. This process indeed specifically refers to a verification process of the design, and even if this process seems to be of an intellectual order, the COMVIK approach show that depending on the technical context, the design characteristics can or can contribute to the technical characteristics of the invention.

In conclusion, this decision shows that computer-implemented simulations can be patented, as long as the claimed invention contains technical characteristics. These new elements brought by the Enlarged Court of Appeal of the European Patent Office validate the approach which had so far been used for patents on computer-implemented inventions and confirm that simulations are not to be viewed differently from other inventions of the same nature.

Amina GIRIN-AFROUNN