Article 52(2) and (3) of the European Patent Convention (EPC) define what is not regarded as an invention for the purposes of the EPC. These provisions, read together, exclude certain subject-matter or activities from patentability only to the extent that the European patent application or European patent relates to such subject-matter or activities as such. This exclusion is interpreted narrowly by the European Patent Office (EPO) and its Boards of Appeal.
The Boards of Appeal of the EPO regularly issue decisions interpreting and applying Article 52(2) and (3) EPC. These decisions are crucial for understanding the boundaries of patentable subject-matter under European patent law. While a comprehensive and static list is impractical due to the continuous stream of decisions, the Boards' decisions consistently address whether a claim falls within the exclusions and whether a technical effect exists which elevates the subject-matter above the excluded categories "as such."
Subject-matter excluded under Article 52(2) EPC includes:
- Discoveries, scientific theories and mathematical methods;
- Aesthetic creations;
- Schemes, rules and methods for performing mental acts, playing games or doing business;
- Programs for computers;
- Presentations of information.
Article 52(3) EPC specifies that the exclusions under Article 52(2) apply only to the extent that the application or patent relates to such subject-matter or activities as such.
The Boards of Appeal's jurisprudence generally focuses on the "technical character" of the invention. An invention possessing technical character is generally not considered to fall under the exclusions of Article 52(2) and (3) EPC. Technical character can arise from:
- A technical problem solved by the invention;
- Technical means used to solve the problem;
- Technical effects achieved by the invention.
The assessment of technical character is often intertwined with the evaluation of inventive step (Article 56 EPC). The "problem-solution approach," commonly used by the EPO to assess inventive step, is relevant when assessing patentability under Article 52(2) and (3) EPC.
Although not exhaustive, readily accessible online databases such as the EPO's own Espacenet and the official website of the Boards of Appeal (eboards.epo.org) contain the full text of published decisions and provide searching capabilities. Furthermore, commercial legal databases also provide access to these decisions, often with enhanced search functionalities and annotations. Searching with keywords such as "Article 52(2) EPC," "Article 52(3) EPC," "technical character," "computer-implemented invention," and "Board of Appeal decisions" is recommended to find relevant case law.