Some consequences of abandoning the contribution approach 

Over a series of decisions the boards of appeal (and in particular Board 3.5.01) explored the consequences of abandoning the contribution approach (see G 3/08, OJ 2011, 10).

In T 931/95 (OJ 2001, 441), the board decided that an apparatus for carrying out an activity excluded as such from patentability by Art. 52(2) and (3) EPC 1973 was not itself excluded from patentability. In particular, a claim directed to a computer loaded with a program was not excluded from patentability by Art. 52(2) EPC 1973 even if the program itself would be, i.e. if the program caused no "further technical effect" when run. That decision did not however extend the logic to methods employing technical means (Headnote 2). The board also held that, for the purpose of determining the extent of the exclusion under Art. 52(2) and (3) EPC 1973, the "further" technical effect could, in its opinion, be known in the prior art (see also T 1461/12, T 556/14).

With regard to methods, this decision was explicitly overturned by T 258/03 (Headnote 1); T 258/03 came to the conclusion that any claim involving technical means was not excluded from patentability by Art. 52(2) EPC 1973 (see points 3 and 4 of the Reasons). T 424/03, finally extended the reasoning applied in T 258/03 to come to the conclusion that a claim to a program ("computer executable instructions" in the claim in question) on a computer-readable medium also necessarily avoids exclusion from patentability under Art. 52(2) EPC 1973 (see Catchword 2 and point 5.3 of the Reasons).

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