4. Two-hurdle approach G 1/19

In G 1/19 (OJ 2021, A77), the Enlarged Board of Appeal set out what is referred to as the two-hurdle approach: the twofold test for patent eligibility and for inventive step (using the COMVIK criteria). The Enlarged Board of Appeal stated that a shift may have taken place in the relative level of each of these two hurdles in the sense that it has become easier to clear the eligibility hurdle of Art. 52 EPC and more difficult to pass the inventive step hurdle of Art. 56 EPC. This chapter relates to the first hurdle; for the question of technicality in relation to Art. 56 EPC, see chapter I.D.9.2. The two-hurdle approach de facto entails three questions: (i) the invention’s eligibility under Art. 52 EPC, (ii) whether a feature contributes to the technical character of the invention and (iii) whether the invention is based on an inventive step vis-à-vis the closest prior art (G 1/19).