2. Whether there is an invention under Art. 52(1) EPC

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, OJ 2008, 46, point 6 of the Reasons; see also G 2/12, OJ 2016, A28).

The question of whether there is any invention at all within the meaning of Art. 52(1) is to be treated as distinct from the question of whether it is susceptible of industrial application, is new and involves an inventive step. In T 154/04, the board distinguished the concept of "invention" as a general and absolute requirement of patentability from the relative criteria, novelty and inventive step, (which, in an ordinary popular sense, were to be understood as the attributes of any invention), as well as from the requirement of industrial applicability.