Wednesday, 17 March 2021

T 1807/15 - Referral G 1/21: OP by ViCo compatible with right to OP acc.Art.116(1) EPC if not all parties agree?

In the present case, the respondent requested that the oral proceedings be postponed due to the COVID-19 pandemic and in particular in view of the restrictions on travel between the United Kingdom and Germany. Furthermore, the respondent pointed out that the oral proceedings were not suitable for a videoconference, in particular since simultaneous interpretation would be required. In response to the respondent's request for oral proceedings to be postponed in view of the travel restrictions, the parties were informed by communication that the oral proceedings  would be held by videoconference (VICO). The appellant responded to that communication by a letter at the end of which the appellant also included a statement that he agreed with the respondent concerning the unsuitability of the case for oral proceedings by videoconference. Oral proceedings nevertheless took place in the form of a videoconference on the scheduled date, i.e. without the parties' consent. During the oral proceedings the appellant requested: "We thus make the auxiliary request that the question be referred to the Enlarged Board of Appeal for decision as to whether oral proceedings under Article 116 EPC can be replaced by a videoconference without the parties' consent?"

Thursday, 11 March 2021

G 1/19 - Computer-implemented simulation of a technical system or process that is claimed as such


In this case, European patent application relates in particular to the modelling and the simulation of movements of a pedestrian in an environment. The simulation of an individual pedestrian's movement may form part of the simulation of a pedestrian crowd ’s movement in a building. Modelling a building and simulating the movement of a crowd within the building may be useful for verifying whether the design of the building fulfils certain requirements, for example in the case of an evacuation of a stadium or a railway station
In its appeal against the refusal, the appellant argued in particular that the method steps of the claimed invention were technical features or physical parameters. Even if the method steps were considered to be non-technical, they still contributed to the technical character of the invention since they resulted in a technical effect by virtue of their interaction with the computer. Reference was made to T 641/00 (COMVIK, OJ 2003, 352) and to T 1227/05 (OJ 2007, 574), the latter concerning simulations.
In its communication accompanying the summons to oral proceedings, the referring board took the view that the steps forming the claimed method were in themselves non- technical and could contribute to the technical character of the claim only to the extent that their combination interacted with the technical features of the claim to produce a technical effect. Such a technical effect could be present if the design of the simulation steps was motivated by technical considerations of the internal functioning of the computer on which the simulation was implemented, or if the technical effect was part of the overall purpose of the claimed method. The referring board tended to the view that the claimed simulation method did not serve a technical purpose and therefore did not contribute to the technical character of the invention.
By interlocutory decision T 489/14 dated 22 February 2019 (OJ 2019, A86, the "referring decision") Technical Board of Appeal 3.5.07 referred, on the basis of Art.112(1) (a) EPC, the following questions of law to the Enlarged Board  for decision:
  1. In the assessment of inventive step, can the computer- implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation's implementation on a computer, if the computer-implemented simulation is claimed as such?
  2. [2A] If the answer to the first question is yes, what are the relevant criteria for assessing whether a computer- implemented simulation claimed as such solves a technical problem? [2B] In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?
  3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?
After assessing the admissibility of the referred questions, rephrasing of part of the questions, an analysis of the legal framework, the existing case law and the various submissions, The Enlarged Board ruled: 
  1. A computer-implemented simulation of a technical system or process that is claimed as such can, for the purpose of assessing inventive step, solve a technical problem by producing a technical effect going beyond the simulation's implementation on a computer.
  2. For that assessment it is not a sufficient condition that the simulation is based, in whole or in part, on technical principles underlying the simulated system or process.
  3. The answers to the first and second questions are no different if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design.

Statcounter