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).
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.
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 practice will change in 2021. 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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