通告
18. March 2021
EUROPEAN PATENT LAW
On 10 March 2021, the Enlarged Board of Appeal of the European Patent Office issued a decision for G 1/19 (Pedestrian simulation). The decision deals with the patentability of computer-implemented inventions in general, and computer-implemented simulations in particular, at the EPO.
The Board summarizes the main features of a computer-implemented simulation as follows:
(i) A numerical model of a system or process (which may be technical or non-technical) in theform 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)" (reasons, point 104).
The decision responded to questions raised by Technical Board of Appeal 3.5.07 in T 489/14. The "referred questions" boil down to whether a claimed simulation can have technical character, and if so, how the technical character of the claimed simulation should be assessed (reasons, point 1).
In the decision, systems being simulated are divided into two categories: a technical system, which "implies that an object is created or a process is run with some purpose based on human creativity" and a physical system, such as the weather, "that can be modelled in the sense of showing how it works" (reasons, point 47). The distinction appears to have been made in view of the referred questions, which explicitly refer to a "technical system".
However, the decision indicates that "it is not decisive whether the simulated system or process is technical or not" (reasons, point 120). Instead, a simulation appears to be treated similarly to any other computed-implemented invention, in that a "technical effect going beyond the simulation's straightforward or unspecified implementation on a standard computer system" (reasons, point 51, emphasis in original) would need to be established in order for features of the claimed simulation to contribute to an inventive step.
Moreover, the Board indicated that for establishing whether the simulation contributes to the technical character of an invention it is "neither a sufficient nor a necessary condition that a numerical simulation is based... on technical principles that underlie the simulated system or process". Specifically, the simulation may reflect non-technical aspects, "such as human behaviour" (reasons, point 142).
A point emphasized several times in the decision is that a "specific problem may not be considered as the basis for the inventive step analysis unless the claim is limited in such a way that substantially all embodiments encompassed by it show the desired effect" (reasons, point 82).
While other types of technical effects appear to be possible in theory, two types of effects were emphasized in the decision. The first type relates to an implementation "motivated by technical considerations relating to the internal functioning of the computer" (reasons, point 112 – related to algorithms; similarly, see point 110 regarding models). The second type involves interaction with physical reality, such as influencing "a real steel volume" or "physically controlling" a nuclear reactor (reasons, point 42). In this connection, the Board emphasized that while "a direct link with physical reality, based on features that per se are technical and/or non-technical, 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" (reasons, point 88).
Another factor is measurements relating to the "calculation of the physical state of an object (e.g. its temperature)". According to the Board, "it is generally acknowledged that measurements have technical character since they are based on an interaction with physical reality at the outset of the measurement method". This is even the case for indirect measurements, i.e., "the measurement of a specific physical entity at a specific location by means of measurements of another physical entity and/or measurements at another location", which "are still related to physical reality and thus of a technical nature, regardless of what use is made of the results" (reasons, point 99).
The Board also distinguished the EPC from 35 U.S.C. § 101 and noted that "a tangible effect is not a requirement under the EPC" (reasons, point 101). The tangibility requirement of 35 U.S.C. § 101 is sometimes met in claims to a computer-readable medium via the expression, "non-transitory".
In conclusion, while limiting the application of the "adequately defined technical purpose" of T 1227/05 (reasons, point 133), the Board seems to have largely maintained the status quo by holding that computer-implemented simulations should be evaluated according to the "COMVIK" approach applied to other computed-implemented inventions.
download Pdf