Germany: Amicus Curiae Brief Concerning G 1/19 - Patentability Of Computer-Implemented Simulation Methods - Underlying Decision: T 489/14 (Pedestrian Simulation/CONNOR)

Last Updated: 4 September 2019
Article by Hans Wegner and Tobias Kaufmann

Dear Chairman and Members of the Enlarged Board of Appeal,

The Boards of Appeal of the European Patent Office (EPO) have developed a well-balanced and consistent framework for the assessment of patentability for computer-implemented inventions (CIIs), as is evidenced by the analysis of the Enlarged Board of Appeal in its decision G 3/08. Computer-implemented simulations, or more precisely computer-implemented simulation methods, form a subset of computer-implemented methods, and are thus to be treated in line with the principles developed for CIIs. The application of these principles led to the decision T 1227/05 (Schaltkreissimulation I/Infineon Technologies) of December 13, 2006, where the deciding Board came to the conclusion that a numerical simulation of a noise-affected circuit described by a model solves a technical problem and is thus eligible for patent protection. The referral decision's criticism on this approach is unjustified, and does not have any legal basis in the European Patent Convention, which – following the systematics of Article 52 (2) and (3) EPC – calls for a narrow approach to any exclusion from patentable subject-matter.

Deviating from the EPO's well-established approaches would also fundamentally contradict principles developed by national jurisdictions. For example, in Germany, in several landmark decisions the Federal Court of Justice applied an approach similar to the EPO's inventive step assessment of computer-implemented methods. More specifically, in its decision "Logikverifikation" of December 13, 1999 (BGH, X ZB 11/98), the Federal Court of Justice dealt with and confirmed patentability of claims relating to computer-implemented simulation methods.

Even more, excluding special technical processes, such as computer-implemented simulation methods, from patentability contradicts the objectives of the European Union. The European Union is currently investing (and has already invested) billions of Euros to counter deficits in the digitalization of domestic industry and to make Europe one of the leading economic locations for digitalization. In many areas of technology, digitalization involves the use of computer-implemented simulation methods. For example, computer-implemented simulations play a decisive role in improving traditional industrial processes or products, and are likewise irreplaceable for designing future systems, e.g. to model applications of artificial intelligence, or the conduct of autonomous vehicles.

Consequently, the well-established "two hurdle approach" seems to be fully appropriate for assessing inventive step of all kinds of computer-implemented methods, irrespective of whether they refer to simulations or other processes. Hence, particularly referral question 1 and the second question within referral question 2 should be answered with "yes". For referral question 3, which we understand to refer to the subgroup of design verification processes within the more general category of computer-implemented simulation methods, the same answer should be given.

In detail:

I. Computer-implemented simulation methods in the European economy

In general, computer-based simulation methods are of utmost importance for the European economy. Industrial design of products, buildings, machines, systems etc. becomes a more and more complex task. Hence, constructing physical prototypes for evaluating design properties is oftentimes impractical due to high costs and large construction time requirements, and contradicts the requirements of an efficient use of natural resources. In specific cases, physical prototyping is even technically impossible when it comes for example to the evaluation of design properties of nuclear reactors, possibly dangerous and/or harmful chemical reactions or effects to the human body of medical agents.

In addition, new economic developments are increasingly taking place in the digital sector. The most prominent representatives here are artificial intelligence (AI) systems which often require the use of computer-implemented simulations. For example, in the field of "generative designs", for optimizing shapes or configurations of constructive elements, AI systems are trained with known element properties. In the course of a numerical simulation cycle, the AI systems aim at optimizing parameters (shape, structure, etc.) to fulfill specific constraints, like robustness or weight, of the constructive elements. Without the use of computer-implemented simulations, such highly-effective optimization processes would not be possible. To give some practical examples for the use of generative designs, steel beams for skyscrapers have been optimized with respect to bearing load and weight, or roll bars for race cars with respect to robustness and air flow characteristics.

For the further development of AI systems, the European Commission is increasing its annual investments in AI by 70% under the research and innovation program Horizon 2020. It will reach EUR 1.5 billion for the period 2018-2020 . Future applications, such as fully autonomous vehicles, will not become reality without the use of computer-based simulation methods, as one could not replicate the complexity of a metropolis as a test environment in the physical world. 

It is also up to the European Patent Organization to ensure that inventions in the digital field remain patentable such that the provision of an adequate protection of related inventions is ensured. These inventions cannot be classified as merely mental or abstract ideas; rather, these developments are inextricably connected to the physical world, as is evidenced by the afore-mentioned examples (nuclear reactor, medical agents, steel beams, roll bars, autonomous vehicles, etc.).

II. Specific comments on referral questions

In the following, we comment on the three referral questions formulated in T 489/14. We thereby take into account how the assessment of patent-eligibility and of inventive step of computer-implemented inventions is handled both by the EPO and in the German jurisdiction. Particularly, denying a technical effect of a computer-implemented simulation method of a technical system or process, and thus answering referral question #1 and the second question within referral question 2 with "no", would fundamentally contradict the EPO's well-established principles how to assess patentability of CIIs and landmark decisions of the German Federal Court of Justice.

Question 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?

  1. The application underlying the decision T 489/14 concerns the computer-implemented simulation of pedestrian crowd movement in an environment, e. g. in a building structure.

    Apparently, the reasoning of the Board of Appeal essentially comprises the following two major points:

    1) In short, the Board in charge criticises that the simulation of the present application allegedly lacks a "direct link with physical reality" (cf. T 0489/14, page 15, point 11).

    2) The Board points to decision T 1227/05 (Schaltkreissimulation I/Infineon Technologies) of December 13, 2006 in which the deciding Board came to the conclusion that a numerical simulation of a noise-affected circuit described by a model solves technical problems and hence would support the present case. However, the Board in charge considers the reasoning given in T 1227/05 not persuasive. In the Board's view, a circuit, when realised, might indeed be a technical object, but the cognitive process of theoretically verifying its design appeared to be fundamentally non-technical (cf. T 489/14, page 15, point 15).

    The Board's approach boils down to a situation where only claims that recite the result of the teaching in the physical world, e.g. the construction of the building, the manufacture of the circuit, etc. could include patentable subject-matter. This view seems to be based on an understanding of a technical teaching, which is outdated since a very long time:
  2. For example, in Germany the Federal Court of Justice already recognized in its famous "Rote Taube" decision of 1969 (BGHZ 52, 74, 76 = GRUR 1969, 672) that a technical teaching cannot be bound to presence of objects of the physical reality. In this decision, the term technical teaching was characterised as "a teaching to methodically utilize controllable natural forces to achieve a causal, perceivable result" (see also G 1/08, point 3 of the reasoning). In the same decision, the Federal Court of Justice came to conclusion that "this definition of the term technical teaching is not static, but can be modified if required by technological development and a thereto adapted patent protection". Hence, if one were to establish a requirement that a claimed teaching needs to recite the physical presence of objects, one would apply an understanding of a technical teaching that might have been appropriate in the late 1960s, but that is no longer in line with today's – oftentimes computer-implemented – inventions. The fact that such an understanding cannot be applied for all times had been explicitly addressed by the German Federal Court in Justice.

    More specifically, in its decision "Logikverifikation" of December 13, 1999 (BGH, X ZB 11/98), which is also referred to in the referral decision, the German Federal Court of Justice confirmed that claims relating to numerical simulations do not need to recite a manufacturing step or the like in order to qualify as a technical teaching. In that decision, the German Federal Court of Justice ruled that "if a teaching for a program for data processing equipment is characterised by a knowledge which is based on technical considerations, there is therefore a demarcation criterion which is also accepted elsewhere and which promotes a uniform patent law practice for Europe and which allows the determination of the necessary technical character of a teaching for a program for data processing equipment" (see reasons, II.4.g), our translation). A similar reasoning is provided in decision BGH X ZB 1/15 – "Flugzeugzustand" in which it was found that – like computer programs – mathematical methods, which were excluded from patentability as such, were patentable if they solved a specific technical problem by technical means.

    It is also to be noted that – in contrast to the Board's one-sided remark in the referring decision drawing attention to some criticism in the literature of 2006 (cf. T 489/14, point 46) – the decision "Logikverfikation" has been consistently relied upon by the German case law since almost two decades. The decision has been cited in at least 28 further decisions of the German Federal Court of Justice as well as the German Federal Patent Court over the last 20 years. Thus, the principles that were laid down in this decision are clearly well-established nowadays. In addition, this case also exemplarily shows that the referring Board's motivation to deviate from the principles of T 1227/05 – lack of "direct link with physical reality" – is unjustified: A method for verifying a logical circuit is inextricably linked to the physical reality, since its computer-based simulation requires the digital/numerical simulation of a physical circuit.
  3. Turning back to the jurisprudence of the EPO Boards of Appeal, there are various examples which show that technical considerations can be present outside of an object of the physical reality:
    • For example, following T 769/92 (OJ EPO 1995, 525), the necessity for technical considerations in the design of a computer implemented method or system is sufficient for the programming features of the method or system to solve a technical problem or achieve a technical effect. In particular, in T 769/92, the deciding Board reasoned that the implementation of a user interface in the form of a "transfer slip" was not merely an act of programming but required technical considerations on the part of the programmer before programming could start; it therefore provided a technical contribution to the art (see reasons 3.7 and 3.8). Moreover, in T 769/92 the Board states that the very need for such technical considerations "implie[d] the occurrence of an (at least implicit) technical problem to be solved (Rule 27 EPC [1973]) and (at least implicit) technical features (Rule 29 EPC [1973]) solving that technical problem" (see reason 3.3).
    • In T 625/11, the deciding board reasoned that a claimed method for establishing a limit value for a nuclear reactor by simulation had technical character despite not requiring implementation.
    • Similarly, in T 471/05, the deciding board reasoned that a claimed method for designing an optical system had technical character without requiring the optical program to be actually produced since the optics design program itself is inherently technical (e.g., must run on computer hardware).

Thus, it is our view that a "direct link with physical reality" requirement is not only not necessary to provide technical character in the case of computer simulations but would also conflict with existing case law of the EPO's Boards of Appeal.

  1. In contrast, the EPO's well established "two hurdle" approach (see T 641/00 (Two identities/COMVIK)), wherein an invention consisting of a mixture of technical and non- technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character provides an appropriate and sufficient criteria for assessing inventive step. This approach should thus be applied to today's computer-implemented inventions – without any further restrictions for specific kinds of subgroups of such inventions.
  2. In view of the above, we respectfully suggest answering question #1 with "yes".

Question 2: 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? 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?

  1. Concerning the first question within referral question 2, we believe that it is to be assessed based on the facts of the case at hand whether a computer-implemented simulation method claimed (as such) solves a technical problem.
  2. Most importantly, the systematics of the law – which laid down a closed list of exclusions from inventions in Article 52(2) EPC and clarified that the exclusions only concern applications/patents related to such subject-matter "as such" (Article 52(3) EPC) – calls for a narrow interpretation of any exclusion. There was clearly no intention of the legislator to exclude computer-implemented simulations or methods that deal with evaluating of design properties of a simulated entity "as such" from patent protection. To the contrary, legislator's intention was to prevent that algorithms, such as sorting algorithms or the like that soley rely on mathematical principles, can be claimed outside a specific technical context, since such principles should be freely usable by everybody.
  3. Hence, it is to be assessed whether a computer-implemented method – and therefore also computer-implemented simulation methods as a subgroup thereof – is claimed in a concrete technical context. The claim does not need to recite any feature or step that directly links the outcome of the claimed teaching with physical reality.

    A technical context is given in particular if the claimed computer-implemented method is based on technical parameters. When, for example, voltage, current strength, temperature, weight, size or other physical parameters are used for performing a simulation, this is a clear indication that technical considerations are taken into account, that the given context is technical and that solving a technical problem is addressed.

    A further indication may be provided by answering the question "who is faced with the problem underlying the invention?". In other words, one may assess whether the skilled person confronted with the objective technical problem to be solved by the claimed subject-matter is a technically skilled person. Such an assessment is supported by Article 52(1) EPC which states that European patents shall be granted for any inventions, in all fields of technology, i.e. in areas where technically skilled persons operate.
  4. Concerning the second question within referral question 2, following the principles of the COMVIK-approach regarding "mixed-type inventions" (comprising technical and non-technical features), it is sufficient when at least parts – explicitly represented by claim features – of the claimed simulation method rely on technical principles.
  5. As a result, we respectfully suggest answering the second question within referral question 2 with "yes".

Question 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?

Also for a computer-implemented simulation claimed as part of a design verification process, questions 1 and 2 shall be answered with "yes". If the computer-implemented simulation is considered technical (see above comments on questions 1 and 2), the same should be true for a claim directed to verifying a design. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions