The EPO’s Enlarged Board of Appeal (EBA) has today (10 March 2021) issued their decision on case G1/19 (simulations), regarding the patentability of computer simulations. Their decision does not rule out patenting computer simulations in Europe.
As we have discussed previously, the referral to the EBA arose from an appeal considering the patentability of an application relating a computer-implemented method of simulating pedestrian movements within a virtual environment or building structure. In that appeal, the Board found that the simulation did not confer technical character, but they recognised that earlier decisions taken by other Boards of Appeal (notably Circuit simulation I/Infineon Technologies T 1227/05) had found that a simulation could be technical in itself, i.e. without requiring an additional step of manufacturing a physical object based on an outcome of the simulation. Because of this divergence, they referred a question to the EBA on patenting computer simulations.
We are still digesting the EBA’s decision, but the EBA has not ruled out patenting simulations such as those in T1227/05. The EBA said that computer simulations are not inherently non-technical. But the EBA also noted that T 1227/05 was based on specific circumstances which do not apply in general.
In particular, it looks like the claimed simulation might have to form the basis for further technical use of the outcome of the simulation and such further use has to be “at least implicitly specified in the claim” to avoid patent protection being granted for non-patentable subject-matter.
We note that the claims in T1227/05 begin with the text “Computer-implemented method for the numerical simulation of a circuit“. Will language such as this be enough to implicitly specify the further technical use of the outcome of the simulation?
We have been waiting for this decision for about nine months – the EBA held oral proceedings last summer. It is a long document and it will take some more time before we have read it in detail. If you have any questions regarding the decision or the patentability of computer simulations in Europe, please get in touch. In the meantime, we will carry on with our review and write a follow-up article on the decision and its implications shortly.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.