1.3.8 Non-technical subject-matter

In case T 619/05 the amendment concerned a feature not contributing to the solution of any technical problem by providing a technical effect. It was thus non-technical subject-matter. The term "subject-matter" in Art. 123(2) EPC, without a qualifier, seemed to indicate that this article applied to non-technical as well as technical subject-matter. Thus, any amendments concerning non-technical subject-matter should also be derivable from the patent application as filed. A difficulty in this connection was that a technically skilled person might not have the knowledge necessary in order to determine whether non-technical subject-matter had been added or not. Since the members of a board of appeal were only required to be technically (or legally) qualified under Art. 21 EPC 1973, it would be up to the applicant (or patent proprietor) in such circumstances to provide evidence permitting a board to determine to its satisfaction how a person skilled in the relevant non-technical field would interpret the original patent application and the application (or patent) after amendment. For the case law on non-technical distinguishing features in the framework of novelty, see chapter I.C.5.2.8 above.