This chapter shows the referral questions for the Enlarged Board of Appeal. In the subchapter (2.1), the reasons are cited why the Board of Appeal in the T0489/14 drafted referral questions for the Enlarged Board of Appeal.
Referred Questions to the Enlarged Board of Appeal
By interlocutory decision T 489/14 dated 22 February 2019 (OJ EPO 2019, A86, the “referring decision”) Technical Board of Appeal 3.5.07 (the “referring board”) referred, on the basis of Article 112(1)(a) EPC, the following questions of law (the “referred questions”) to the Enlarged Board of Appeal (the “Enlarged Board”) for decision:
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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?
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[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?
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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?
(Numbers [2A] and [2B] were added by the Enlarged Board.)
Enlarged Board of Appeal adapts the referred questions
In G1/19, point 54 to 65 the Enlarged Board of Appeal considers the requirements for admissibility and the criteria for assessing the admissibility of the refered questions. Under points 66 to 74 the Enlarged Board of Appeal admits the referred questions 1, 2B and 3 but did not admit question 2A. The question 2B has been re-worded by the Enlarged Board of Appeal as follows:
“For the assessment of whether a computer-implemented simulation claimed as such solves a technical problem, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?"