2.2 Subject-matter excluded from patentability under Art. 52(2) and (3)

Subject-matter or activities listed in Art. 52(2), when taken as such (Art. 52(3)), are considered non-technical (G‑II, 1 and 2). If a claim contains a mix of technical and non-technical features, the search division identifies which features contribute to the technical character of the claimed subject-matter (see G‑VII, 5.4) and its search covers all those features.

Features that appear to be non-technical when taken in isolation may still contribute to the technical character of a claimed invention if, in the context of that invention, they help to produce a technical effect that has a technical purpose. Merely implementing effects that are inherent in the excluded subject-matter (T 1543/06) or that result from circumventing the technical problem rather than contributing to its technical solution does not qualify as a technical effect (T 258/03). Examples of how to evaluate contribution to technical character for each of the items listed in Art. 52(2) are provided in G‑II, 3.1-G-II, 3.7.

Claimed features are analysed in the light of the description and drawings to determine whether they produce a technical effect and contribute to a technical solution to a technical problem (see B‑III, 3.2 and B‑IV, 1.1). In particular, specific embodiments disclosed in the description and drawings ‒ to which the claims might reasonably be expected to be limited (see B‑III, 3.5) ‒ are taken into account since they could confer technical character on the claimed features.

If the search division considers that some claim features do not contribute to the technical character of the claimed invention, it will state this in the search opinion. If it objects to a lack of inventive step and at least some of the distinguishing features are found not to have a technical effect contributing to the solution of a technical problem (see G‑VII, 5.4), it will substantiate this finding.