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EPO – Enlarged Board of Appeal asked to decide on the patentability of computer-implemented simulation programs

06 Mar 2019

EPO, Technical Board of Appeal 3.5.07, T 489/14, decision of February 22, 2019 – Pedestrian simulation/CONNORS

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

For the second time, the Enlarged Board of Appeal (EBA) is faced with the question to which extent the exclusion from patentability in Article 52 (2) EPC applies to computer-implemented inventions (CIIs).

Although its first decision (G 3/08 – Patentability of programs for computers, OJ EPO 2011, 10) held the referral inadmissible since it failed to show a relevant divergence in case law as required under Article 112 (1) b) EPC for a referral by the President of the EPO, its analysis of the then existing case law is still a valuable source for understanding the EPO’s approach for assessing the patentability of CIIs.

This time a Board of Appeal made the referral. Technical Board of Appeal 3.5.07 referred the following questions:

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?

The underlying invention is directed to a simulation program which may be used for simulating the movement of a pedestrian crowd in the design of building structures such as a stadium or a railway station in order to avoid congestions.

Board 3.5.07 considered that the implementation of the method on a computer did not require non-trivial technical features, nor had the design of the method been motivated by technical considerations concerning the internal functioning of the computer, resulting in a specific technical effect being achieved when the method is run on the computer. Thus, in its communication preparing the summons to oral proceedings, the Board tended to the view that the simulation method did not contribute to the technical character of the invention and that, for this reason, the claimed subject-matter lacked inventive step.

In reply, the applicant argued that the claimed subject-matter produced a further technical effect within the meaning of decision T 1227/05 (Circuit simulation Infineon Technologies, OJ EPO – 2007, 574) in the form a more accurate simulation of a crowd movement.

The Board observes the following: Computer-implemented simulations play nowadays an important role in the development of new products and legal certainty in respect of the patentability of such tools is highly desirable. The point of law relating to the interpretation of Articles 52 (2) and (3) and 56 EPC cannot be answered directly and unambiguously by reference to the EPC, i.e. it is a point of law of fundamental importance within the meaning of Article 112 (1) a) EPC. The answer is important not just for the present case but for a potentially large number of cases involving computer-implemented simulations.

A copy of the decision can be read here.