EPOs case law:

from

Decision T 0154/04 - 3.5.01

(A) Article 52(1) EPC sets out four requirements to be fulfilled by a patentable invention: there must be an invention, and if there is an invention, it must satisfy the requirements of novelty, inventive step, and industrial applicability.

(B) Having technical character is an implicit requisite of an 'invention' within the meaning of Article 52(1) EPC (requirement of 'technicality').

(C) Article 52(2) EPC 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" (Article 52(3) EPC).

(D) The four requirements invention, novelty, inventive step, and susceptibility of industrial application are essentially separate and independent criteria of patentability, which may give rise to concurrent objections. Novelty, in particular, is not a requisite of an invention within the meaning of Article 52(1) EPC, but a separate requirement of patentability.

(E) For examining patentability of an invention in respect of a claim, the claim must be construed to determine the technical features of the invention, i.e. the features which contribute to the technical character of the invention.

(F) It is legitimate to have a mix of technical and 'non-technical' features appearing in a claim, in which the non-technical features may even form a dominating part of the claimed subject matter. Novelty and inventive step, however, can be based only on technical features, which thus have to be clearly defined in the claim. Non-technical features, to the extent that they do not interact with the technical subject matter of the claim for solving a technical problem, i.e. non-technical features 'as such', do not provide a technical contribution to the prior art and are thus ignored in assessing novelty and inventive step.

(G) For the purpose of the problem-and-solution approach, the problem must be a technical problem
which the skilled person in the particular technical field might be asked to solve at the relevant priority date. The technical problem may be formulated using an aim to be achieved in a non-technical field, and which is thus not part of the technical contribution provided by the invention to the prior art. This may be done in particular to define a constraint that has to be met (even if the aim stems from an a posteriori knowledge of the invention). [...]

FFII fix:

1. Definition of "Computer-Aided Invention": A "Computer-aided invention"[, also inappropriately called "computer-implemented invention",] is an invention in the sense of patent law the performance of which involves the use of a programmable apparatus.

2. Definition of "computer program": A "computer" is a realisation of an abstract machine consisting of entities such as input/output, processor, memory, storage space and interfaces for information exchange with external systems and human users. "Data processing" is calculation with abstract component entities of computers. A "computer program" is a solution of a problem by means of data processing which can, as soon as it has been correctly described in a suitable language, be executed by a computer.

3. Objects of Product and Process Claims: A computer-aided invention may be claimed as a product, that is as a programmed apparatus, or as a process carried out by such an apparatus.

4. Exclusion of Program Claims: A patent claim to a computer program, either on its own or on a carrier, shall not be allowed.

5. Freedom of Publication: The publication or distribution of information can never constitute a patent infringment.

6. Negative Definition of "Field of Technology": Data processing is not a field of technology.

7. Positive Definition of "Technical" and "Field of Technology": "Technology" is applied natural science. A field of technology is a discipline of applied science in which knowledge is gained by experimentation with controllable forces of nature. "Technical" means "belonging to a field of technology".

8. Negative Definition of "Contribution": An improvement in data processing efficiency is not a technical contribution.

9. Positive Definition of "Contribution" and "Invention": An "invention" is a contribution to the state of the art in a field of technology. The contribution is the set of features by which the scope of the patent claim as a whole is presumed to differ from the prior art. The contribution must be a technical one, i.e. it must comprise technical features and belong to a field of technology. Without a technical contribution, there is no patentable subject matter and no invention. The technical contribution must fulfill the conditions for patentability. In particular, the technical contribution must be novel and not obvious to a person skilled in the art.

10. Freedom of Interoperation: Wherever the use of a patented solution is necessary in order to ensure interoperability, such use is not considered to be a patent infringement.