In order to be patentable, the subject-matter claimed must therefore have a "technical character" or to be more precise - involve a "technical teaching", ie 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. While an invention as a whole may possess technical character, it may nevertheless legitimately include both technical and non-technical features (T 641/00, OJ 2003, 352, T 1543/06). Decisive for the presence of a (potentially patentable) invention is the inherent character of the claimed subject-matter (T 154/04).
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). Thus, following T 258/03, an invention claiming technical aspects possesses overall technical character, even if it is "mixed" (with both technical and non-technical aspects) (T 859/07, T 188/11, T 414/12, T 1331/12).
In T 914/02 the board held that the involvement of technical considerations is not sufficient for a method which may exclusively be carried out mentally to have technical character. Technical character may be provided through the technical implementation of the method, resulting in the method providing a tangible, technical effect, such as the provision of a physical entity as the resulting product or a non-abstract activity, such as through the use of technical means. The board rejected a claim directed to an invention involving technical considerations and encompassing technical embodiments on the grounds that the invention as claimed could also be exclusively performed by purely mental acts excluded from patentability under Art. 52(2)(c) EPC (see T 619/02, OJ 2007, 63; T 388/04, OJ 2007, 16).
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.
The issue of technical character is analysed in detail in Chapter I.A.1.1 "Technical character of an invention".