Can You Patent A Simulation At The EPO?

• Published date: 06 August 2020
• Subject Matter: Intellectual Property, Patent
• Law Firm: Haseltine Lake Kempner LLP
• Author: Dr. Monique Henson

On 15 July 2020, the eagerly awaited referral to Enlarged of Board of Appeal (EBA) regarding computer-implemented inventions was heard at the EPO. Monique Henson takes a look at some of the considerations highlighted in amicus curiae briefs submitted to the EBA.

The referral to the EBA (G1/19 -from T 0489/14) asks whether a simulation can, by itself, provide a technical effect and, if so, what the criteria for determining this are. Perhaps unsurprisingly, the consensus from the briefs seems to be that simulations should not be excluded from patentability per se, as they may be capable of producing a technical effect.

However, several authors take issue with the referral itself, stating that existing case law is sufficient to ensure uniform application of the law, and there is no point of law of fundamental importance raised by the referred questions. For example, the first question in the referral essentially asks whether a computer-implemented simulation can provide a technical effect by itself. In its amicus curiae brief, the IP federation note that it is well established that computer-implemented methods can produce a technical effect beyond their implementation on a computer (e.g. in T 1173/97 IBM), and a computer-implemented simulation is merely an example of a computer-implemented method.

Similarly, several authors submit that the case law relating to computer-implemented methods has been uniform in its application, which means that the first question is inadmissible.

Indeed, a common theme running through the briefs is the question of whether computer-implemented simulations should be treated any differently to any other computer-implemented method, with most authors finding no reason to diverge from the approach for assessing the patentability of computer-implemented inventions...