In a rare referral to the Enlarged Board of Appeal, the EPO’s highest appeal board that decides on points of fundamental importance, the following three questions have been posed concerning the patentability of computer simulation:
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?
These questions have been referred by a Technical Board of Appeal in decision T 0489/14. The invention concerns a computer-implemented method of modelling pedestrian crowd movement in an environment. In its decision, the Technical Board accepted that an earlier case T 1227/05 (Circuit simulation - Infineon Technologies) supported the applicant’s case that the invention was patentable. However, the Board was not fully convinced by the earlier decision’s reasoning and was inclined to deviate from it. In deciding to make its referral to the Enlarged Board, the Technical Board commented:
The present case therefore requires a decision to be taken on - to put it in general terms for now - the patentability of simulation methods. This is a point of law which relates to the interpretation of Articles 52(2) and (3) and 56 EPC and cannot be answered directly and unambiguously by reference to the EPC, i.e. it is a point of law of fundamental importance (cf. decision G 1/12, OJ EPO 2014, A114, reasons 10). The answer is important not just for the present case but for a potentially large number of cases involving computer-implemented simulations (see, for example, the decisions discussed in points 38 to 41 below, which were taken by four other organisational boards of appeal). Moreover, the Board at present intends to deviate from the interpretation and explanations of the EPC given on this point in decision T 1227/05 so that the uniform application of the law is also at issue. The Board further notes that the considerations necessary for settling the point of law are likely to help clarify the meaning of Article 52(2) and (3) EPC and its interaction with Article 56 EPC more generally. The Board therefore considers that it should refer the point of law to the Enlarged Board of Appeal in the form of the questions formulated below.
Computer simulation was one of three areas we predicted would be the subject of a referral in our October 2018 article. The Enlarged Board should now consider the questions and we will be watching closely for developments.