In T 258/03
(OJ 2004, 575) the board considered that the wording of Art. 52(2)(c) EPC 1973
, according to which "schemes, rules and methods for performing mental acts, playing games or doing business" were not to be regarded as inventions within the meaning of Art. 52(1) EPC 1973
. The board was not convinced that this wording imposed a different treatment of claims directed to activities and claims directed to entities for carrying out these activities. What mattered having regard to the concept of "invention" within the meaning of Art. 52(1) EPC 1973
was the presence of technical character
which might be implied by the physical features of an entity or the nature of an activity, or might be conferred on a non-technical activity by the use of technical means. In the board's view, activities falling within the notion of a non-invention as such would typically represent purely abstract concepts devoid of any technical implications. The board held that a method
involving technical means is an invention within the meaning of Art. 52(1) EPC 1973
(as distinguished from decision T 931/95
). The board noted that previous decisions of the boards of appeal had held that the use of technical means for carrying out a method for performing mental acts, partly or entirely without human intervention, might, having regard to Art. 52(3) EPC 1973
, render such a method, a technical process or method and therefore an invention within the meaning of Art. 52(1) EPC 1973
" (T 38/86
, OJ 1990, 384, T 769/92).
However, method steps consisting of modifications to a business scheme and aimed at circumventing a technical problem
rather than solving it by technical means could not contribute to the technical character of the subject-matter claimed.