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Case Law of the Boards of Appeal

 
 
a)
Earlier case law of the boards of appeal: the "contribution approach" 

In order to assess whether the claimed subject-matter was an invention within the meaning of Art. 52(1) EPC 1973, the boards of appeal applied, in their earlier case law, the so-called "contribution approach", according to which an invention had a technical character if it provided a technical contribution to the state of the art in a field not excluded from patentability under Art. 52(2) EPC 1973 (see T 121/85, T 38/86, OJ 1990, 384; T 95/86, T 603/89, OJ 1992, 230; T 71/91, T 236/91, T 833/91, T 77/92). The idea behind the so-called contribution approach applied by earlier jurisprudence of the boards of appeal was that the EPC 1973 only permitted patenting "in those cases in which the invention involves some contribution to the art in a field not excluded from patentability" (T 38/86, OJ 1990, 384). In other words, in order to assess the first requirement, i.e. the presence of an invention within the meaning of Art. 52(1) EPC 1973, a criterion was established which relied on meeting further requirements mentioned in that Article, in particular novelty and/or inventive step. Thus, some prior art was taken into account when determining whether subject-matter was excluded under Art. 52(2) and (3) EPC 1973 (T 258/03, OJ 2004, 575; see T 769/92, OJ 1995, 525).