The Enlarged Board of Appeal (EBoA) has handed down its eagerly awaited decision concerning the patentability of computer-implemented simulations. The implications of this decision are far reaching since computer-implemented (CI) simulations are used to model systems found in a wide range of fields including engineering, chemistry, biology, and even human psychology.
In a 66 page decision, the EBoA has decided that:
- 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.
- 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.
- 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.
What this means in practice is that the patentability of CI simulations must be assessed in the same way as any other computer-implemented invention. It disposes of any suggestion that CI simulations are a group of computer implemented inventions that is a-priori excluded from patent protection, and makes clear that the CI simulation being based at least in part on technical principles underlying the simulated system or process is neither sufficient nor necessary to establish technicality.
Helpfully for future practice, the EBoA has stressed that CI simulations must be examined on a case-by-case basis using the established COMVIK approach to determine whether a technical problem is solved, and has indicated that boundaries formed by the models underlying a CI simulation, whether technical or not in themselves, may contribute to technicality if they are “a reason for adapting the computer or its functioning” or if they “form the basis for a further technical use of the outcomes of the simulation (e.g. a use having an impact on physical reality)”. In this latter case, however, the further use must be at least implicitly claimed.
Our full briefing note on the decision will follow shortly.