In its decision G 1/19 of March 10, 2021, the Enlarged Board of Appeal of the European Patent Office positions itself on the possibility of protecting a computer-aided simulation as such.
If the Convention on the European Patent does not make it possible to protect software itself, because intrinsically devoid of technical character, it remains possible to protect a process resulting from the execution of software, provided that this process involves technical means . Thus, the simple fact of specifying that the process is implemented by a computer is sufficient to attribute a technical character to it. Nevertheless, to have a chance of being patentable, such a process will have to produce a so-called additional technical effect, that is to say one that goes beyond, for example, the simple electrical activation of the transistors present in the computer. by executing software instructions.
It is more precisely the so-called "COMVIK" approach which applies, in connection with decision T 641/00: the requirement of inventive step is assessed by taking into account only the characteristics which contribute to the technical character of the invention, whether these features are technical or non-technical. We see here that the notion of "as such" takes on its full meaning, since a characteristic of an intrinsically non-technical nature which contributes to the technical purpose of the invention will be taken into account for the assessment of the inventive step. .
Computer simulations are special cases of processes implemented on a computer, since the technical effects they are likely to produce remain virtual. Very often, therefore, there is no direct interaction with reality.
The Grand Chamber nevertheless considers that this is not an obstacle to the attribution of technical character, on the one hand because a contrary approach would reduce the very notion of technicality, and on the other hand because a simulation makes it possible to to obtain information relating to the behavior of the modeled system or process, and therefore to draw at least partial conclusions on a physical reality. Since a computer-aided simulation is a computer-implemented process that includes technical and non-technical features, the criteria formulated under the COMVIK approach are applicable, according to the Grand Chamber. A digital simulation may therefore be patentable if an inventive step can be based on features contributing to the technical character of the claimed simulation process, whether the system or process it models is technical or not.
In conclusion, it now seems possible to protect in Europe a computer-aided simulation process without claiming technical steps in addition to the simulation itself, provided that a technical effect derives at least implicitly from the object of the claims. It remains to be determined to what extent a technical effect can be considered sufficiently implicit.