1.4.5 Apparatus constituting a physical entity or concrete product

An apparatus for carrying out an activity excluded as such from patentability by Art. 52(2) and (3) EPC is not itself excluded from patentability. In particular, a claim directed to a computer loaded with a program is not excluded from patentability by Art. 52(2) EPC even if the program itself would be, i.e. if the program causes no "further technical effect" when run (T 931/95, OJ 2001, 441; see also G 3/08 date: 2010-05-12, OJ 2011, 10).

In T 931/95 (OJ 2001, 441) the board held that an apparatus constituting a physical entity or concrete product, suitable for performing or supporting an economic activity, was an invention within the meaning of Art. 52(1) EPC 1973. The board found that a computer system suitably programmed for use in a particular field, even if that was the field of business and economy, had the character of a concrete apparatus in the sense of a physical entity, man-made for a utilitarian purpose and was thus an invention within the meaning of Art. 52(1) EPC 1973. This distinction with regard to patentability between a method for doing business and an apparatus suited to perform such a method was justified in the light of the wording of Art. 52(2)(c) EPC 1973, according to which "schemes, rules and methods" were non-patentable categories in the field of economy and business, but the category of "apparatus" in the sense of "physical entity" or "product" was not mentioned in Art. 52(2) EPC 1973. This meant that, if a claim was directed to such an entity, the formal category of such a claim did in fact imply physical features of the claimed subject-matter which could qualify as technical features of the invention concerned and thus be relevant for its patentability. An apparatus constituting a physical entity or concrete product suitable for performing or supporting an economic activity, was an invention within the meaning of Art. 52(1) EPC 1973.

In T 258/03 (OJ 2004, 575) the board was not convinced that the wording of Art. 52(2)(c) EPC 1973, according to which "schemes, rules and methods for performing mental acts, playing games or doing business" shall not be regarded as inventions within the meaning of Art. 52(1) EPC 1973, imposed a different treatment of claims directed to activities and claims directed to entities for carrying out these activities. What matters having regard to the concept of "invention" within the meaning of Art. 52(1) EPC 1973 is the presence of technical character which may be implied by the physical features of an entity or the nature of an activity, or may be conferred on a non-technical activity by the use of technical means. The board held that the apparatus was an invention within the meaning of Art. 52(1) EPC 1973, since it comprised features which were clearly technical such as a "server computer", "client computers" and a "network". The board stated that this line of reasoning was independent of the category of the claim.

In T 2258/10 of 4 October 2011 the board found that any apparatus constituting a physical entity or concrete product has technical character. A cooking vessel clearly falls within this definition, and thus per se has technical character.