2 October 2019

Is it possible to patent a simulation?

Until recently, the answer was: sometimes, if it had a proven ‘further technical effect’. The standard example that would usually be cited – including in the official European Patent Office (EPO) guidelines (the Guidelines for Examination) – is decision T 1227/05 from 2006. In this case, it was determined that simulation of the performance of an electronic circuit subject to 1/f noise could be considered patentable because it helped solve a technical problem, i.e. the development of circuits.

This criterion was also applied in 2013 to a European patent application (EP 03793825.5) concerning the simulation of the movement of an autonomous entity through an environment, such as a group of pedestrians. The decision made was that there was no technical effect, and therefore no patent was granted.

The applicant disagreed and appealed against the decision. In the resulting case, T 0489/14, the Technical Board of Appeal (TBA) considered the European Patent Convention too ambiguous on this point to be able to make a decision. In such cases, the TBA can decide to refer the question to the Enlarged Board of Appeal (EBA). This they did in February 2019, and the three questions referred will be considered in case G1/19.

Many people have an opinion of (and a stake in) what the answer should be to these questions, and so the referral has already attracted a large number of amicus curiae letters from interested parties. On 13 September, the EPO President himself, António Campinos, submitted his own comments.

The full comments can be found on the EPO website. The document starts by summarising the current situation concerning the patentability of computer-simulated methods, before going on to discuss the three referred questions. The subject-matter is too intricate to explain here in detail – for that we refer interested parties to the IPKat blog – but the gist of the comments would seem to be that the precedent set by T 1227/05 should be adhered to and that it must be possible to consider patenting simulations as long as they have sufficient technical effect.

So, will the EBA agree? We will have to wait and see, but we will let you know as soon as we do.