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Case Law of the Boards of Appeal

 
 
1.2. Separate and independent patentability requirements

Art. 52(1) EPC 1973 in conjunction with Art. 52(2) and (3) EPC 1973 is generally interpreted as implying a requirement of technical character for a claimed invention to be patentable. Whereas technical character was previously assessed using the "contribution approach", recent case law has abandoned this approach in favour of one which recognizes the requirement of technical character as separate and independent of the remaining requirements of Art. 52(1) EPC, in particular novelty and inventive step, and compliance with which can therefore be assessed without having recourse to the prior art (T 1543/06).

According to T 154/04 (OJ 2008, 46), it was clear from the wording of Art. 52(1) EPC 1973 and the use of the term "invention" in the context of the criteria for patentability, that the requirements of invention, novelty, inventive step, and susceptibility of industrial application were separate and independent criteria, which might give rise to concurrent objections under any of these requirements. Novelty, in particular, was not a requisite of an invention within the meaning of Art. 52(1) EPC 1973, but a separate patentability requirement. This construction of Art. 52(1) EPC 1973 had a clear basis in the case law of the Enlarged Board of Appeal (G 2/88 (OJ 1990, 93), points 7.2, 7.3 and 8 of the Reasons, and G 1/95 (OJ 1996, 615), points 4 ff. of the Reasons).