Revisiting G 1/19 Three Years Later: A Missed Opportunity?

Abstract Decision G 1/19 of the EPO’s Enlarged Board of Appeal has changed the patentability of computer-implemented simulations. It has also had an impact on the patentability of computer-implemented inventions in Europe more generally, which has become more restrictive as existing case law has not been confirmed. Moreover, G 1/19 has started a process in which previously well-defined legal terms are becoming increasingly blurred. The author identifies the problems associated with this development and points to early case law, such as T 208/84 and the German Federal Supreme Court’s (BGH) Logikverifikation, which the Enlarged Board of Appeal could easily have followed but chose not to. Finally, the author presents his own ‘Three Motives Model’ as a possible solution and compares it with a previous, similar model based on a ‘Virtual Analog Rule’ for patent eligibility suggested by Joseph. S. Bird in the US in 2015.