Patent protection for digital twins

Today, digital twins are integral across sectors like manufacturing, construction, healthcare, transportation and entertainment. As industries increasingly adopt these technologies for predictive maintenance, product design and process optimization, their uptake is reflected in projections of rapid market growth. Hence, McKinsey estimates that the global digital twin market will grow at an annual rate of approximately 60% over the next five years, reaching $73.5 billion USD by 2027. This evolution underscores the role of digital replicas in reshaping modern industry, working hand-in-hand with advances in the Internet of Things (IoT), artificial intelligence (AI) and data analytics.

As IBM has stated, digital twins are a vital part of the digital reinvention of asset-intensive industries, a revolution driven by a need to integrate physical and digital views of equipment, facilities and procedures: "The future of digital twins is nearly limitless because increasing amounts of cognitive power are constantly being devoted to their use. So, digital twins are constantly learning new skills and capabilities, which means they can continue to generate the insights needed to make products better and processes more efficient."

Electric reflections in the real world 

Enhanced computing power, faster connectivity and the emergence of machine- and deep learning now allow digital twins to deliver increasingly sophisticated simulations. These technologies enable cyber twins to adapt dynamically to new data and shifting conditions, providing real-time insights with remarkable accuracy.

Even in the past few months, there have been a number of examples of the power and potential of digital twins in various industries. 

These include:

• FarrSight-Twin, which creates virtual clinical trials of new treatments using digital twins of real cancer patients. Presented by Dr. Uzma Asghar, co-founder and chief scientific officer at Concr, the approach uses biological data to predict how a patient will respond to a treatment. Early indications are that patients who receive the treatment selected by FarrSight-Twin have a much higher response rate than those who do not.

• A trial by High Speed 1 and Network Rail High Speed in the United Kingdom to make rail operations – including maintenance, renewals and inspection – more efficient and less expensive using a digital twin developed by Hexagon Consultants and Aerogility. The successful trial could have applications in other transport infrastructure, too.

• An internet network digital twin, which is synchronized with a real-world connection. As described by Nokia Bell Labs, such a digital twin could improve the strategic and operational aspects of managing capacity on fiber optic networks – increasing utilization without impacting speed.

• The Destination Earth (DestinE) project, which uses two digital twins of the Earth to predict weather extremes and climate change adaptation. By adding further virtual replicas, the European Commission aims to have a complete simulation of Earth's climate by 2030.

• The influence of digital twins on Industry 5.0 in enabling connectivity between cyber and physical spaces. A study by European researchers last year argued that digital twins are the most promising technological enablers of the next stage in industrial development. Rising to meet the ambitions of this nearing technological revolution would be extremely difficult without using reliable, precise and inspectable digital simulations.

These cases are merely the tip of the iceberg. The next few years will likely see a more pervasive application of digital twins as companies invest heavily in their development and utilize their expanding capabilities. However, this rapid innovation brings up critical questions about Intellectual Property (IP) – specifically, how cyber twins and their underlying technologies can be safeguarded through patent rights.

The patent problem

At their heart, digital twins are very sophisticated computer simulations. As is well established, "programs for computers […] as such" are one of the categories of inventions that are excluded from patentability by Article 52 of the European Patent Convention (EPC). Over the past few decades, this exception has been addressed and developed in many cases before the European Patent Office (EPO) Boards of Appeal. The settled position is that, to overcome the Article 52 exclusion, the invention for which protection is sought must have a technical character. As the EPO has ruled: "A computer program product is not excluded from patentability under Article 52(2) and (3) EPC if, when it is run on a computer, it produces a further technical effect which goes beyond the 'normal' physical interactions between program (software) and computer (hardware)."

This technical effect must be something more than what is typical of executing a program, such as electrical currents. Following the Board of Appeal decisions in T 0641/00 (Two identities/COMVIK) and T 0258/03 (Auction method/HITACHI), which have been confirmed in more recent decisions, the EPO takes a two-step approach to examining such patent applications.

1. In assessing whether the claimed subject matter is an invention within the meaning of Article 52, if the claim involves technical means, then it is considered an invention.
2. In evaluating novelty and inventive step, any features that do not contribute to the technical character of the claimed invention are disregarded.

Deciding on computer simulations

In 2021, the EPO Enlarged Board of Appeal (EBA) published a decision regarding a European Patent application filed by Bentley Systems (UK) Limited for a "computer-implemented method of modelling pedestrian crowd movement in an environment." The invention concerned a simulation used in the process of designing a venue such as a railway station or stadium.

In its decision G 0001/19 (Pedestrian simulation), the EBA confirmed that the COMVIK approach is suitable for the assessment of computer-implemented simulations, stating: "Like any other computer-implemented inventions, numerical simulations may be patentable if an inventive step can be based on features contributing to the technical character of the claimed simulation method."

It concluded:

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.

While the decision confirmed that computer-implemented simulations are patentable, it did not further elucidate what is a technical effect. In its decision, the Board said that when the COMVIK approach is applied to simulations, the boundaries formed by the underlying models may be technical or non-technical:

"In terms of the simulation itself, these boundaries are not technical. However, they may contribute to technicality if, for example, they are a reason for adapting the computer or its functioning or if they form the basis for further technical use of the outcomes of the simulation (e.g., use impacting physical reality)." This further use must be at least implicitly specified in the patent claim.

The patent application that was the subject of this decision (EP1546948) was refused in 2022.

Lessons for patentees

Case G 0001/19 highlights the issues that can arise regarding patent applications for simulations. While other IP offices around the world may take a different approach to patentability based on their own laws, this decision provides valuable lessons that are likely to be more widely applicable. The EPO EBA presented arguments about the necessity of differentiating between the "potential (or tangible) technical effects" and "virtual (or calculated) technical effects" of calculated numerical data. Potential technical effects can occur when an invention is put into practice in the physical world, for example, in controlling an autonomous vehicle or manufacturing a new product. Virtual technical effects can occur in a model or simulation of the real world but may not manifest in the actual physical environment outside that model or simulation. A potential technical effect would be considered patentable, whereas a virtual technical effect may not. On the other hand, a simulated system's virtual technical effects and underlying algorithms have the potential to confer a technical character insofar as they themselves have a technical purpose.

Digital twins are made up of a multitude of technological components that could individually contain patentable innovations, such as sensors and data analytics. However, to patent an invention implemented in or as a digital twin, it is critical to demonstrate the technical effect of said application, distinguishing it from a mere software application or simulation of reality. For example, it is important to describe in express terms how the technology integrates its patent-eligible components, be they data collection, processing, analytics or visualization. It is worth remembering that real-world test results and measurements can be included to demonstrate a technical aspect in the form of empirical data, such as lower operating costs, reduced heat buildup or faster performance.

Previewing the future of industry

Despite the complications, many applications are successful in obtaining patent rights for digital twin inventions. According to research published by GlobalData in 2024, there were more than 1,600 patent publications related to digital twins in 2023, compared to fewer than 200 in 2019. The United States ranked top in terms of digital twin patent publications, with nearly 3,000 patents from 2016 to 2023 (69% of the global total), followed by China with 681 patents published. Among the most active companies in this field were Siemens, General Electric, Honeywell and Rockwell Automation, according to the research.

IP professionals can advise on which aspects of a digital twin invention are patentable and how patent applications should be drafted to maximize protection. Moreover, consideration should be given to other forms of IP, such as copyright or database protection (where available), which may be relevant as part of a holistic IP strategy.

The commercial use of digital twins is likely to grow enormously in the next few years, and they will have a critical role to play in making products and processes more efficient, safe and sustainable.

Patent protection will be essential to safeguarding investment in this innovation and ensuring competitive advantage, as licensing key technologies further enables broad take-up. Businesses should, therefore, carefully consider their patenting strategy in this area to ensure they can make the most of the exciting opportunities ahead.

A version of this article was published in The Patent Lawyer Annual 2025.