Patents and Simulations in Europe

In 2021 the highest Board of Appeal at the EPO changed (or clarified depending on your perspective) whether or not patent application relating to simulations would be allowable at the EPO. On the right, we have provided a selection of some of our insights into this decision, including what this might mean for applicants. A more detailed list of our insights can be found here.

How do I know when I have a simulation invention?

Simulations are rife in the modern world. From the design of components for an aeroplane to the movement of people in a crowded space, simulation is finding highly diverse application across many technical fields. The European Patent Office (EPO) treats simulations per se as inherently non-technical meaning that a European patent cannot usually be obtained for a simulation itself in the absence of any technical context. However, an invention that makes use of a simulation in a technical context can, in principle, be the subject of a granted European patent.

GJE have created a practical guide to help you understand whether your computer simulation might be patentable in Europe in view of the recent developments at the EPO. Read here.

The EPO considers that, regardless of the nature of the simulation (physical or numerical) and by any definition, the result of the simulation is information about the potential behaviour of the modelled system or process. It is the use of this information that might lead to a granted patent. The EPO considers a simulation to include:

(i) A numerical model of a system or process (which may be technical or non-technical) in the form 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).

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Are simulations patentable?

As is often the case, the answer is maybe. A key conclusion of a recent legal development was that, while a model used in a simulation is inherently non-technical and therefore not eligible for a patent, the model can contribute to technicality (and hence form part of a patentable invention) in the case where the outcome of the simulation is used in a technical manner. This closely parallels the principles established with regard to AI and machine learning-based inventions, and indeed to mathematical methods and computer programs generally.

Our article here details some of the key points that need to be considered when attempting to protect your simulation at the European Patent Office.

When considering whether to patent a simulation, key questions to ask include:

  • Is your simulation used in the context of a technical system?
  • How does the simulation fit into your product or service – is it single use or repeat use, for example?
  • How difficult would it be to detect use of your simulation by a competitor?
  • Where does your simulation execute – on a customer terminal or a proprietary server, and in which countries?

The answers to these questions are typically highly informative in determining whether a simulation can and should be patented. Examples and analogies can help understand whether an idea can be protected. We’ve put some together here.

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How can GJE help you protect your simulation invention?

In order to secure the best future for your business you need advice from the right experts on how to develop an IP protection plan that fits with your technology and supports your broader business plan. GJE can help you get this right and make sure that your business is in the best possible position for future success.

For corporates and agents, GJE has subject-matter experts willing and able to help you protect your inventions in the UK and Europe. We have looked at the conclusions of G1/19 overall here and the impact on industry here. To help you prepare and prosecute your applications, we have prepared some practical claim drafting tips here and some notes on how we expect practice will change after this key decision. Our Computer Technology team is on hand to help you navigate the post-G1/19 complexity.

Whether you are a fledging start-up seeking seed funding, a fast-growth SME scoping Series A or B funding opportunities, or an established company looking to streamline its IP portfolio or secure a lucrative exit, we can help you. We have developed ConsultIP™ to help you achieve these objectives. ConsultIP™ helps business owners – at whatever stage of their lifecycle – maximise the commercial value of their intellectual property. Visit our ConsultIP™ page here to find out more.

We can help you:

  • Develop an IP protection plan aligned with your business objectives
  • Protect your innovations, brands and designs
  • Increase the value of your business
  • Enhance your attractiveness to investors
  • Create and maintain a competitive advantage by establishing barriers to market entry
  • Manage your IP portfolio and ensure cost efficiency
  • Regularly review your IP strategy to ensure it remains aligned with your commercial objectives

Watch our video here to find out how we helped one of our clients, Wave Optics, develop their patent strategy, and how this has helped them grow.

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Have a question about how to protect simulations?

Articles on Simulations

Board of Appeal’s Preliminary Opinion in T0489/14 Following G1/19 Decision

Following the recently issued decision by the Enlarged Board of Appeal in G1/19, the referring Board in T0489/14 have now issued their preliminary opinion and a summons to oral proceedings. As we expected from what was set out in G/19,...

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Patenting Biological Simulations in Drug Discovery

  Our article ‘Patenting Biological Simulations in Drug Discovery’ has been published in Drug Discovery Today, by Elsevier. It examines the challenges faced when pursuing patent protection for biological simulations, particularly in view of the guidance provided by the European...

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The Law of Unintended (or Intended) Consequences — The Impact of the Legal Developments on Simulations on Machine Learning

  Recent attempts to clarify the EPO’s approach to examining machine learning applications have arguably been missing an important factor… a body of case law on which to base the guidance.  The section on AI and machine learning in the...

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Patenting a Simulation at the European Patent Office — Some Key Points

  Simulations are rife in the modern world. From the design of components for an aeroplane to the movement of people in a crowded space, simulation is finding highly diverse application across many technical fields. The European Patent Office (EPO)...

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G1/19 on Patents and Simulations — How may Industry feel about the Enlarged Board’s decision?

  We have kept a close eye over the past year on G1/19 the referral to the EPO’s Enlarged Board of Appeal in relation to the patentability of simulations. Now that the decision has issued, we thought it would be...

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Innovation in Simulations, from Robots to Wrinkles

  The big news last Wednesday in the world of computer-implemented inventions was the long awaited publication of the G1/19 decision, developing the law on patenting simulations in Europe. In light of this decision, it seems a good time to...

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Does the Latest Simulations Decision from the Enlarged Board in G1/19 Move Us Closer to European Harmonisation?

  Of course, they won’t come out and say it, but the answer to our mind is undoubtedly yes – whether that was on purpose or not, only the EPO will know. In 2011, the UK Courts reined in the...

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Has the Patentability of Computer Simulations Changed in Europe Following the Recent Decision in G1/19?

  On 10 March 2021, the Enlarged Board of Appeal at the EPO issued the long-anticipated decision G 1/19 concerning the patentability of computer simulations. Before this decision, the standard for determining patentability in this area was dictated by case...

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Simulating the EPC Guidelines after G1/19

  As part of the fallout from the recent G1/19 decision, the Guidelines for Examination in the EPO will have to be updated to reflect the new law. Though there is a bit of a wait until the next update...

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Changes in Simulations at the EPO: A Debrief

  As the dust settles following the out-of-the-blue release of G1/19, we thought we would put together some notes and thoughts on what the decision will mean for applicants and practitioners — whether they are Europe-based or elsewhere. The most...

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Practical Claim Drafting Tips for Computer Implemented Inventions In View of G1/19

  The EPO’s Enlarged Board of appeal handed down decision G1/19 on 10 March 2021. This decision concerns the patentability of computer simulations under the European Patent Convention (EPC). While primary applicability of this decision is of course to simulation...

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Computer Simulations are Patentable — but which ones?

  The European Patent Office has recently confirmed that computer simulations can be patentable. However, whether or not a simulation is likely to be patentable isn’t always straightforward. This article looks at some of the patentable and non-patentable examples recently...

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Computer Simulations: Strategy for Patents

  The patentability of computer simulations has recently been in the spotlight in Europe. On 10 March 2021, the Enlarged Board of Appeal (which is the highest court of appeal at the EPO) issued its decision in case G 1/19...

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