On the 10th of March, the Enlarged Board of Appeal within the European Patent Office issued decision G 1/19. The Board held that the established case law on computer-implemented inventions (COMVIK approach) applies also to computer-invented simulations.
Background
The aim of the Enlarged Board of Appeal, which is the highest judicial authority under the European Patent Convention (EPC), is to ensure the consistent and uniform implementation of the Convention.
What is the COMVIK Approach?
Initially applied in T641/00 in 2003, the COMVIK Approach is a conventional application of the problem and solution methodology, during which the differences with respect to the closest existing art are decided and only such that contribute to the technical character of a potential patent are considered for inventive step. It is indeed, a well-established legal principle that non-technical elements do not contribute to the inventive step. This is essentially, the main principle of the infamous T641/00.
The COMVIK approach ensures that non-technical issued do not impact the decision taken on the possibility of an inventive step or otherwise. This approach is considered appropriate where the technical part is substantial and/or relevant prior art exists.
In one case, in which the invention related to a computer system, the Board stated that in order to examine this type of subject-matter, the COMVIK approach would be applied. However, the appellant has submitted that since Article 52(1) of the European Patent Convention has been brought in line with Article 27(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), it had now to be interpreted in light of the objective of TRIPS. This would essentially, require a modification to the COMVIK approach. However, one must note that TRIPS does not impose how the requirements are to be applied. The TRIPS signatory states are to choose different standards for each patentability requirement.
The Decision
European Patent Application 03793825.5 concerns a computer-implemented simulation of pedestrian crowd movement in a particular environment, such as a building. The application was refused by the Examination Division, on the basis that the application lacked an inventive step. The Examination Division held that the simulation does not contribute to the technical character of the invention. Subsequently, the applicant appealed this decision and the Technical Board of Appeal 3.5.07 referred three questions to the Enlarged Board of Appeal.
Article 52(2) of the European Patent Convention lists a non-exhaustive list of non-inventions. The lists include inter alia, ‘programs for computers’. Having said so, the exclusion from patentability is limited to ‘the subject-matter or activity as such’ (Article 52(3)) . The Board concluded that the COMVIK approach applies also to computer-implemented simulations. The Board stated that such simulations much be assessed in accordance with the same criteria as any other computer-implemented invention.
