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10 Mar 2021

European Patent Office, Enlarged Board of Appeal, G 1/19 – Pedestrian simulation, decision of March 10, 2021, reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

Almost eight months after the oral proceedings, the Enlarged Board of Appeal (EBA) issued its decision in the case pedestrian simulation. The EBA rephrases and limits question 2 and answers the rephrased questions referred by the Technical Board of Appeal 3.5.07 in T 489/14 as follows:

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.

The EBA confirms the twofold test for computer-implemented inventions comprising the two-hurdles for patent eligibility and for inventive step, using the COMVIK criteria as established in T 641/00, observing that this approach actually contains an intermediate step, i.e. establishing whether a feature contributes to the technical character of the invention.

For computer-implemented simulations, the EBA defines a relevant effect in this assessment as a “technical effect going beyond the simulations straightforward or unspecified implementation on a standard computer system” (emphasis in the original). The EBA explains that technical effects can occur within the computer-implemented process (e.g. adaptation of data transfer), they may occur at the input (e.g. a measurement) and the output of this process (e.g. a signal) but also during its execution. While a direct link with physical reality is in most cases sufficient to establish technicality, it cannot be a necessary condition, if only because the notion of technicality needs to remain open.

While the EBA considers the criterion of a “potential technical effect” as applicable in the context of the problem-solution approach if the data obtained is specifically adapted for its intended technical use, the reference to “tangible” effects is not regarded as a criterion contributing to a more precise delimitation of patentable inventions.

Following the COMVIK approach, models underlying a simulation may contribute to technicality if they are, for example, a reason for adapting the computer or its operation, or if they contribute to technical effects relating to the results of the simulation. In order to rely on a technical improvement in the implementation of a simulation, relevant details have to appear as limiting features in the claims. The assessment whether the simulation of a system contributes to the solution of a technical problem has to be answered using the same criteria as for other computer-implemented inventions. The mere calculation of the behavior of a technical system as it exists on the computer, and the numerical output of such calculation should not be confused with any technical effect of the simulation process.

A copy of the decision can be read here.