9.2.5 Features contributing to the technical character of the invention

The issue of technical character is analysed in detail in chapter I.A.3 “Technical character as a requirement for an invention”.

According to the established case law, features of an invention that do not have a technical effect or do not interact with the remaining features of the invention so as to result in a technical functional contribution cannot be considered to contribute to an inventive step within the meaning of Art. 56 EPC. This is not only the case when the features themselves do not contribute to the technical character of the invention (T 641/00, OJ 2003, 352; T 258/03, OJ 2004, 575; T 531/03; see also T 456/90, T 931/95, T 27/97, T 258/97, T 1121/02 and T 1784/06), but also when the features may in principle be qualified as being of a technical nature but do not have any technical function in the context of the claimed invention (T 619/02, OJ 2007, 63; T 72/95, T 157/97, T 158/97, T 176/97). In addition, this is so regardless of whether the features are themselves obvious or not (see T 72/95, T 157/97, T 158/97 and T 176/97). In T 1784/06) the board held that it would appear paradoxical to recognise an inventive step on the basis of a non-technical innovation (such as an organisational, administrative, commercial or mathematical algorithm) having no technical implication other than the (obvious) desire for its implementation on a general-purpose computer (see also T 279/21).

Decisive for the presence of a (potentially patentable) invention is the inherent technical character of the claimed subject-matter (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 154/04, OJ 2008, 46; T 1227/05, OJ 2007, 574). The subject-matter claimed must have a "technical character" or to be more precise – involve a "technical teaching", i.e. an instruction addressed to a skilled person as to how to solve a particular technical problem using particular technical means (T 154/04, OJ 2008, 46). Having technical character is an implicit requisite of an invention within the meaning of Art. 52(1) EPC 1973 (requirement of "technicality"). Art. 52(2) EPC 1973 does not exclude from patentability any subject-matter or activity having technical character, even if it is related to the items listed in this provision since these items are only excluded "as such" (Art. 52(3) EPC 1973) (T 154/04, OJ 2008, 46). Technical character results either from the physical features of an entity or (for a method) from the use of technical means (T 641/00, OJ 2003, 352, T 1543/06).

The case law identifies the requirement of technical character as separate to and independent of the remaining requirements of Art. 52(1) EPC 1973, in particular novelty and inventive step, compliance with which can therefore be assessed without having recourse to the prior art (T 154/04). 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 154/04, OJ 2008, 46, T 1227/05, OJ 2007, 574). According to T 208/84 (OJ 1987, 14), one indication of technical character is that the method has an overall technical effect, such as controlling some physical process (see also T 313/10).

In T 388/04 (OJ 2007, 016) the board took the view that subject-matter or activities that are excluded from patentability under Art. 52(2) and (3) EPC 1973 remain so even where they imply the possibility of making use of unspecified technical means.

In T 1370/11 the board stated that the improved speed of a computer program is not by itself a technical contribution to the art (see also T 42/10). See in this chapter I.D.9.2.10 for further details.

In T 2488/11 the board held that logging or documenting the execution details of tests carried out in a laboratory, irrespective of the technicality of the tests themselves was not technical. The board also held that the mere automation of a non-technical task by means of notorious technical means cannot involve an inventive step.

In T 302/19 the examining division considered claim 1 as being a straightforward automation of a known manual practice of a laboratory assistant. The board held that for such an argument to succeed, it should be clear what is the alleged manual practice, it should be convincing that it was indeed an existing practice at the relevant date and that it would have been obvious to consider automating it.

The board in T 1411/21 confirmed that stock management is not technical and held that this also applied to fleet management of hire cars, which in this case included a method for determining a technical stop of a vehicle at a maintenance centre.

In T 1375/11 the problem was to improve ergonomic operability. The board was in no doubt that how to improve ergonomics was a technical problem, citing T 1296/05. It also referred to the approach taken in T 862/10, in which it had been held, that both the problem and its solution were technical because they depended not on psychological or subjective factors, but on technical parameters (based, among other things, on human physiology) that could be precisely defined.

In T 2491/12 the board held that the claimed invention was not directed to a real-time problem in the sense of improving a technical process, but rather to automation in the sense of making (non-technical) financial information available quickly. This automation was achieved by mapping the financial concept of derivative transactions on a client-server computer system, which was deemed not sufficient for technical effect.

In T 1148/18 the board's view was that predicting travel time based on historical data is conceptually similar to predicting arrival dates for delivery of mail based on previous delivery times (see T 983/11) or predicting future purchases based on previous ones (see T 977/17). These are all activities excluded per se from patentability under Art. 52(2)(a) EPC and/or Art. 52(2)(c) and (3) EPC (see also T 154/04). In T 2367/22, the board cited T 1148/18 and held that a system for more accurately predicting a travel time was not technical.