The Enlarged Board of Appeal issued a decision G1/19 holding that current EPO case law on computer-implemented inventions (COMVIK approach – T641/00) also applies to computer-implemented simulations as the present invention.
Background – EP03793825.5
The Enlarged Board of Appeal (EBA) is the highest judicial authority of the European Patent Convention (EPC). The main roles of EBA is to ensure the uniform application of the EPC and protection of the interests of the public.
EP03793825.5 describes a computer-implemented simulation of the movement of crowds through – buildings.
The Examining Division (ED) refused the application on the grounds that the invention lacked an inventive step. The ED argues that the alleged invention considered a simulation which lacks technical character.
The applicant appealed and the Technical Board of Appeal (TBA) referred THREE questions on the patentability of computer-implemented simulations to the Enlarged Board of Appeal under Art. 112(1)(a) EPC:
- 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?
- 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?
- 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?
Points of consideration
The Enlarged Board of Appeal considered and then held that the current COMVIK approach applies to computer-implemented simulations – stating that simulations must be assessed according to the same criteria as any other computer-implemented invention.
Any technical effect going beyond the normal electrical interactions within the computer on which the simulation is implemented (i.e. any “further technical effect”) may be considered for inventive step.
The invention underlying the referral concerned a simulation process comprising only numerical INPUT and OUTPUT, without any interaction with a tangible physical reality – here referring to the TBA’s formulation of a “computer-implemented simulation as such“.
The Enlarged Board of Appeal stated that a claimed feature of a computer-implemented invention may contribute to the technical character of the invention NOT only if it is related to a technical effect in the form of INPUT (e.g. the determination of a physical value) or OUTPUT (e.g. a control signal for a machine).
According to the EBA, a direct link with physical reality is NOT required for every case. In particular, technical effects may also occur within a computer-implemented process (e.g. by specific adaptations of a computer or of data transfer).
In assessing whether a simulation contributes to the technical character of a claimed invention, it is not critical whether a technical or a non-technical system or process is simulated.
Consequently, these principles would be applicable, where a computer-implemented simulation simply forms part of a design process!