1. Patent protection for technical inventions

Art. 52(1) EPC expresses the fundamental principle of a general entitlement to patent protection for any invention in all technical fields (see G 5/83, OJ 1985, 64, point 21 et seq. of the Reasons; G 1/98, OJ 2000, 111, point 3.9 of the Reasons; G 1/03, OJ 2004, 413, point 2.2.2 of the Reasons; G 1/04, OJ 2006, 334, point 6 of the Reasons; T 154/04; OJ 2008, 46, 62, point 6 of the Reasons). Any limitation to the general entitlement to patent protection is thus not a matter of administrative or judicial discretion, but must have a clear legal basis in the EPC (see G 2/12, of 25.03.2015, OJ 2016, A28; T 154/04).

The technical character as a legal requirement of invention was expressly confirmed by the Conference of the Contracting States to Revise the EPC of 20 to 29 November 2000.

During the course of the revision of the EPC, Art. 52(1) EPC was brought into line with Art. 27(1), first sentence, TRIPS with a view to enshrining the word "technology" in the basic provision of substantive European patent law, clearly defining the scope of the EPC, and explicitly stating in the law that patent protection is available to technical inventions of all kinds. The new wording of Art. 52(1) EPC plainly expresses that patent protection is reserved for creations in the technical field (see OJ SE 4/2007, 48). The revised Art. 52 EPC applies to European patents granted and European patent applications pending on 13 December 2007 and to applications filed on or after that date.

Art. 52(2) EPC contains a non-exhaustive list of "non-inventions", that is, subject-matter or activities not to be regarded as inventions within the meaning of paragraph 1. The exclusion from patentability of the subject-matter or activities referred to applies only to the extent that a European patent application or European patent relates to such subject-matter or activities as such (Art. 52(3) EPC; see also OJ SE 4/2007). Art. 52(2) EPC covers subject-matter whose common feature is a substantial lack of technical character.

The application of Art. 52(1) EPC presents a problem of construction as there was no legal or commonly accepted definition of the term "invention" at the time of conclusion of the Convention in 1973. Moreover, the EPO has not developed any such explicit definition since. Art. 52(2) EPC is merely a negative, non-exhaustive list of what should not be regarded as an invention within the meaning of Art. 52(1) EPC. It was the clear intention of the contracting states that this list of "excluded" subject matter should not be given too broad a scope of application, as follows from the legislative history of Art. 52 (2) EPC. Art. 52(3) EPC is a bar to a broad interpretation of Art. 52(2) EPC (T 154/04, point 6 of the Reasons; see also G 2/12, OJ 2016, A28).

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