6.1. Legal basis

Art. 52(2) EPC lists subject-matter or activities not regarded as inventions within the meaning of Art. 52(1) EPC. It states that in particular the following shall not be regarded as inventions within the meaning of paragraph 1; (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.

Seeing as Art. 52(2) EPC, Art. 52(3) EPC is a limitation to the general entitlement to patent protection laid down in Art. 52(1) EPC, it is not a matter of judicial discretion, but must have a clear legal basis in the EPC (see T 154/04, OJ 2008, 46; see also G 2/12, OJ 2016, A28).

According to T 930/05, the mere fact that the list of items not to be regarded as inventions in accordance with Art. 52(2) EPC 1973 was non-exhaustive, ("in particular"), indicated that there was a common criterion for exclusion which these items shared and which could serve as the basis for possible additions to the list. The enumeration of typical non-inventions in Art. 52(2) EPC 1973 covered subjects whose common feature was a lack of technical character. The catalogue of exclusions under Art. 52(2) EPC 1973, with its reference to Art. 52(1) EPC 1973, was to be regarded as a negative definition of the concept of invention.

Art. 52(3) EPC states that paragraph Art. 52(2) EPC shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.