16 July 2020

EPO’s hearing has ‘broad implications’ for computer inventions

In a rare hearing, the  European Patent Office (EPO) enlarged board met yesterday, 15 July, to consider the patentability of computer implemented inventions.

The EPO heard a patent application regarding whether the simulation of people moving on foot through an environment such as a railway station or other large building is a patentable subject matter.

According to the  European Patent Convention (Art. 52) programmes for computers and mental activities are excluded from patentability. The legal question surrounds whether this simulation method would be excluded from patentability.

Dr Chris Benson, partner at law firm HGF, said: “The implications of the board’s decision are likely to extend far beyond this particular case, not only more widely to other simulation methods, such as for aircraft as was mentioned during the hearing, but even into areas such as Artificial Intelligence (AI).”

The application was initially refused by the EPO and the applicant appealed against the refusal to a Board of Appeal. The EPO has previously allowed the patenting of a simulation method in the form of an application by technology company Infineon relating to the simulation of circuit noise in 2006.

However the Board of Appeal did not follow this case law and referred three questions for consideration by the Enlarged Board of Appeal, which were the subject of yesterday’s hearing.

Benson said: “The questions generally related to whether a computer-implemented simulation can have a technical character; what are the criteria for such a simulation having a technical character and if it is sufficient, whether the simulation is based on technical principles of a simulated system or process; and how would the first two questions be answered if the simulation is part of a design process.”

He added that both the applicant and the EPO president António Campinos provided strong arguments that if there are technical principles underlying the simulated system or process, then this is a sufficient condition.

Both had prepared similar fictitious examples of a wind tunnel test and a computer-simulated wind tunnel test to argue that both solved the same technical problem of improving aircraft aerodynamics eg, airplane wings.

The board concluded the oral proceedings without giving a decision on the questions.

Benson said: “However, given the submissions of the parties and the vast majority of the amicus curiae briefs supporting answering the questions affirmatively in favour of the patentability of computer implemented simulations, it will be surprising if the Enlarged Board decide differently.”

He added: “We await with interest the outcome of this case not only in relation to simulation methods, but whether the board’s comments may apply to other areas of technology such as AI.”

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More on this story

Jurisdiction reports
1 February 2012   A decision of the English High Court has led the UK Intellectual Property Office to issue a new practice notice that instructs UK examiners to take a much narrower view of the “mental act” exclusion to patentability.
1 August 2010   As the second-largest semiconductor chipmaker in Europe, Infineon has developed a bold strategy to protect its intellectual property. WIPR talks to Michael Tierney, the company’s principal licensing attorney.