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 on 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 known as the "patent eligibility hurdle", requires that the claimed subject-matter as a whole not fall under the "non-inventions" listed in Art. 52(2) and Art. 52(3). Art. 52(3) limits the exclusion from patentability of the subject-matter and activities listed in Art. 52(2) to ones 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 is assessed 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", meaning 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 inventive step if and to the extent that it contributes to the technical character of the invention. Whether a feature contributes to the technical character of the invention has to be assessed in the context of the invention as a whole.