2. Examination practice 

The question of whether there is an invention within the meaning of Art. 52(1) is separate and distinct from the questions of whether it is susceptible of industrial application, is new and involves an inventive step.

The exclusions from patentability under Art. 52(2) play a role in assessing both patent eligibility and inventive step because patent protection is reserved for inventions involving a "technical teaching", i.e. an instruction addressed to a skilled person as to how to solve a particular technical problem using particular technical means. This twofold assessment is referred to as the "two-hurdle approach" (G 1/19).

The first hurdle, also referred to as the patent eligibility hurdle, requires that the claimed subject-matter as a whole must not fall under the "non-inventions" defined in Art. 52(2) and (3). The exclusion from patentability of the subject-matters and activities referred to in Art. 52(2) is limited by Art. 52(3) to such subject-matters or activities that are claimed "as such". This limitation is a bar to a broad interpretation of the non-inventions. It implies that one technical feature is sufficient for eligibility: If the claimed subject-matter is directed to or uses technical means, it is an invention within the meaning of Art. 52(1). This assessment is made without reference to the prior art.

The second hurdle is where inventive step is assessed. In addition to technical features, claims may also comprise non-technical features. In this context, the term "non-technical features" refers to features which, on their own, would be considered "non-inventions" under Art. 52(2). Inventive step of claims comprising such a mix of technical and non-technical features is assessed using the COMVIK approach (G‑VII, 5.4). This approach is a special application of the problem-solution approach that involves establishing which features of the invention contribute to its technical character (i.e. contribute to the technical solution of a technical problem by providing a technical effect). A feature may support the presence of an inventive step if and to the extent that it contributes to the technical character of the invention. Whether any feature contributes to the technical character of the invention has to be assessed in the context of the invention as a whole.