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The much anticipated G1/19 decision has arrived with the EPO Enlarged Board of Appeal confirming that the EPO’s established approach to the assessment of inventive step of computer-implemented inventions is the correct approach for computer-implemented simulation methods.
On 10 March 2021, the Enlarged Board issued decision G1/19 and confirmed the applicability of the approach set out in the frequently-cited decision T641/00 (COMVIK), and in particular confirmed that a claim to a computer-implemented simulation of a technical system or process can satisfy the European criteria for inventive step, even if the claim does not recite features that interact directly with a physical entity.
In other words, it is not essential to recite measurement of a physical parameter or to recite output of a control signal for controlling a machine or physical process when claiming a computer simulation invention – the simulation itself can provide the requisite technical character for European patent protection.
In particular, the Enlarged Board of Appeal recognised that a claimed computer-implemented simulation may solve a technical problem by producing a technical effect even if the claim lacks an output having a direct link with physical reality.
This is highly significant for practitioners when writing claims for inventions that rely on computer simulation. The recognition that a computer-implemented simulation of a technical system or process can be claimed as such, since a simulation can solve a technical problem by producing a technical effect, allows us to continue drafting simulation claims without limitation to recite a physical measurement or a subsequent system/process control step.
As noted in the EPO’s own communiqué, the decision confirms that the EPO’s current approach to the assessment of inventive step of computer-implemented inventions is applicable to computer-implemented simulations. This asks whether a claimed feature contributes to an invention’s technical character, and only considers features that do contribute to technical character when assessing inventive step.
The application that led to the referral of questions to the Enlarged Board of Appeal was European patent application 03793825.5, which relates to modelling and simulation of movement of a pedestrian through an environment, such as a building. Modelling a building and simulating movement of pedestrians within the building is useful for evaluating the building design (e.g. checking requirements for speed of evacuation). The acknowledged prior art relied on a macroscopic model of a crowd of pedestrians, but the application modelled the movement of individual pedestrians instead and took account of human behaviour. The applicant submitted claims to a computer-implemented method of modelling pedestrian crowd movement that included simulating movement of each pedestrian. Additionally, as an auxiliary request, claims to a method of designing a building structure using computer-implemented simulation of pedestrian movement to revise a model of the building structure were submitted. Both types of claim relating to computer-implemented simulations are potentially allowable following G1/19, regardless of whether 03793825.5 is itself an allowable application. For such claims, the EPO will assess the inventive step using the COMVIK approach, taking account of the computer-implemented simulation steps.
For more detailed comments, please contact AA Thornton partners Mike Jennings or Nikesh Patel.
Category: Latest Insights | Author: Mike Jennings, Nikesh Patel | Published: | Read more
