In the 2016 decision T 2440/12-Fluid flow simulation/SIMCON,
Technical Board of Appeal 3.5.07 has found that a commercially
available software package makes the methods it embodies available
to the public because it could be run byline in a virtual machine
(VM).
As is well known, a claimed method is not novel in Europe if it
has been made available to the public before the effective filing
date. In Fluid flow simulation/SIMCON, the patentee sold
software embodying the invention before the effective filing date
of their European patent. The relevant question was whether the
software, which could be implemented on a computer, is a public
disclosure of the method as claimed.
The patentee argued that the software does not enable the
skilled person to reconstruct the mathematical model that underlies
the claimed method. The claim was presented in the terminology of
the model for simulation of fluid flow, including the use of a
framework of rod elements and a surface
