On March 10, 2021, the Enlarged Board of Appeal of the European Patent Office issued its decision G1/19, dealing with the patentability of computer-implemented simulations.

According to this decision, the main features of a computer-implemented simulation can be summarised as follows :

(i) A numerical model of a system or process (which may be technical or non-technical) in the form of data that can be processed by a computer ;

(ii) Equations representing the behaviour of the model (which may include random functions) ;

(iii) Algorithms providing numerical output that represents the calculated state of the modelled system or process (in particular, by time increments or as a sum or average calculated on the basis of numerous random events).

The system or process to be simulated is not part of the simulation.

In terms of patent law, the simulated system or process is usually prior art for simulation inventions. The creative contributions of numerical simulations typically lie in the development, selection or improvement of underlying equations or algorithms, or in specific uses or adaptations of the computers employed for the simulations.

The application underlying this case, EP 03 793 825.5 (WO 2004/023347 A2) related to

• a computer-implemented method for simulating the movement of crowds of pedestrians through a building structure (such as e.g., a train station) in order to avoid emergency situations or congestions before actually constructing such a building in reality, and
• a method of designing a building structure, said method comprising providing a model of said building structure and then simulating the movement of crowds through said building structure.

The EPO’s Examining Division refused the application arguing that it was not based on an inventive step. This decision was appealed in case T 0489/14, before the Board of Appeal 3.5.07. The appeal cited case T 1227/05 (before the Board of Appeal 3.5.01) in which it had been decided that the computer-implemented simulation of an electrical circuit subject to noise had a technical effect because it was used to determine the chances of success of a prototype before it was actually built. In the T 0489/14 case, the Board of Appeal acknowledged similarities to the case underlying T 1227/05. In the T 0489/14 case, the Board of Appeal acknowledged similarities to the case underlying T 1227/05.

In T 1227/05, the method of simulating an electrical circuit subject to noise was regarded part of a manufacturing process in the semiconductor industry and it was held that such a simulation method is not devoid of technical effect merely because it does not incorporate the physical end product. According to that decision, the simulation of a circuit subject to 1/f noise constitutes an adequately defined technical purpose for a computer-implemented invention “provided that the method is functionally limited to that technical purpose”

However, in T 0489/14 the Board of Appeal was not fully convinced by the reasoning in T1227/05. In T 0489/14 the Board argued that the implementation of the pedestrian movement simulation method on a computer did not require any non-trivial technical features but was inclined to consider the pedestrian movement simulation method not to contribute to the technical character of the invention and that the claimed subject matter lacked an inventive step.

In order to avoid potentially divergent lines of case law decisions, the Board of Appeal in T 0489/14, referred three questions to the Enlarged Board of Appeal which addressed

• whether a computer-implemented simulation as such can solve a technical problem and produce a technical effect,
• what the relevant criteria should be used for assessing whether a technical problem is actually solved,
• whether the answer to the first two questions might be different if the simulation is part of a design process.

In G1/19, the Enlarged Board of Appeal confirmed "that the existing jurisprudence on computer-implemented inventions also applies to computer -implemented simulations" and maintained "the established approach to the assessment of inventive step, known as the COMVIK approach” which is summarized in the headnotes of the decision in Case T 641/00 as follows :

I. An invention consisting of a mixture of technical and non-technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character whereas features making no such contribution cannot support the presence of inventive step.

In G1/19, the EBA responded to three questions submitted in the Case T 0489/14 and stated :

• 1. A computer-implemented simulation of a technical system or process that is claimed as such can, for the purpose of assessing inventive step, solve a technical problem by producing a technical effect going beyond the simulation’s implementation on a computer.
• 2. For that assessment it is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or process.
• 3. The answers to the first and second questions are no different if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design.

Conclusion :

G1/19 has confirmed that computer implemented simulations should be examined in the same manner as computer related inventions in general.

In particular, the EBA has confirmed that the COMVIK approach for assessing technicality and inventive step as applied in the general practice of the EPO (for a quick overview refer to the Guidelines for Examination, “Index for Computer-Implemented Invention”) is also applicable to computer implemented simulations.

According to the COMVIK approach, “technical considerations” should result in contributions to the technical character of the invention itself. Applied to computer-implemented simulations, only technical considerations relating to a potential contribution to the technical character of the simulation can be relevant for the inventive step assessment.

Like any other computer-implemented inventions, numerical simulations may be patentable if an inventive step can be based on features contributing to the technical character of the claimed simulation method.

However, even if the principles underlying the simulated system or process of a simulation, can be described as technical, the simulation does not necessarily have a technical character.

• Therefore, and under the COMVIK approach, each individual feature (technical or non-technical) of a computer-simulated invention must be evaluated when assessing inventive step.
• And numerical simulations must be examined by the EPO on a case-by-case basis to decide whether a computer-simulated invention has a technical character.