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Case Law of the Boards of Appeal

1. Patent protection for technical inventions

The revised version of the EPC ("EPC 2000") came into effect on 13 December 2007. During the course of the revision of the EPC, Art. 52(1) EPC was brought into line with Art. 27(1), first sentence, TRIPs with a view to enshrining the word "technology" in the basic provision of substantive European patent law, clearly defining the scope of the EPC, and explicitly stating in the law that patent protection is available to technical inventions of all kinds. The new wording of Art. 52(1) EPC plainly expresses that patent protection is reserved for creations in the technical field (see OJ SE 4/2007, 48). The revised Art. 52 EPC applies to European patents granted and European patent applications pending on 13 December 2007 and to applications filed on or after that date. The amendment is unlikely to affect the practice of the EPO.

Art. 52(2) EPC contains a non-exhaustive list of "non-inventions", that is, subject-matter or activities not to be regarded as inventions within the meaning of paragraph 1. The exclusion from patentability of the subject-matter or activities referred to applies only to the extent that a European patent application or European patent relates to such subject-matter or activities as such (Art. 52(3) EPC; see also OJ SE 4/2007). The EPC 2000 made no substantive changes to Art. 52(2) or (3) EPC, merely minor editorial corrections.