Partner Matthew Hoyles and senior associate Sam Jones observed the long anticipated G1/19 Enlarged Board of Appeal hearing held on 15 July 2020. All sides provided well thought out arguments and some particularly interesting points were raised, including the potential for machine learning algorithms to be considered as alternatives to simulations, in the sense that they can model a system without an understanding of the underlying equations that describe the system being modelled.
It was also interesting to see the ‘business person’ as established and developed in various earlier decisions of the EPO Boards of Appeal being mentioned by both the Appellant and the representatives of the President of the EPO, with a suggestion that identifying whether the inventive concept originated from a technical or non-technical person could be helpful in determining whether a simulation has technical character.
The Enlarged Board did not provide a decision on the day but certain comments were made suggesting that they may decide as follows:
Yes to Question 1 of the referral, such that the principle established in Infineon (T 1227/05) that a computer-implemented simulation claimed as such can have technical character, if it solves a technical problem looks likely to be upheld.
Question 2 was split into two parts by the Enlarged Board, with the first part relating to ‘relevant criteria’ being found inadmissible owing to it being of too broad scope and the second part being answered in the negative such that more is needed than basing the simulation on technical principles to gain technical character.
Question 3 appeared to have been addressed relatively easily by the Enlarged Board, in that claiming the simulation as part of a design process was felt to make no difference to the answers to Questions 1 and 2.
In conclusion, it seems that the EPO is sticking to its principles that the technical purpose of an idea is all important. We eagerly await the decision of the Enlarged Board.