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Case Law of the Boards of Appeal

 
 
9.1.1 Technical character of the invention

Several decisions by the boards of appeal, especially Technical Board of Appeal 3.5.01, were concerned with the assessment of inventive step in cases where the invention consisted of a mix of technical and non-technical features. Originally, having technical character was an implicit requirement of the EPC 1973 which had to be met by an invention in order to be an invention within the meaning of Art. 52(1) EPC 1973. In the revised edition of the Convention (EPC 2000), technical character was formulated as an explicit requirement. The legal definition of Art. 56 EPC is to be put into context with the remaining patentability requirements of Art. 52 to 57 EPC, these articles implying the general principles that patents shall be available for inventions in all fields of technology and that technical character is a sine qua non for an invention within the meaning of the EPC (T 931/95, OJ 2001, 441; T 935/97, T 1173/97, OJ 1999, 609; T 641/00, OJ 2003, 352; T 914/02, T 1227/05, OJ 2007, 574).

Adopting this approach, it is legitimate to have a mix of technical and "non-technical" features (i.e. features relating to non-inventions within the meaning of Art. 52(2) EPC) appearing in a claim, even if the non-technical features should form a dominating part (T 26/86, OJ 1988, 19; T 769/92, OJ 1995, 525; T 641/00, OJ 2003, 352 and T 531/03).

The issue of technical character is analysed in detail in Chapter I.A.1.1 "Technical character of an invention".