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Understanding Fundamental Criteria In
The nontechnical features may even form a major part of the claimed subject matter. However, in the light of Art. 52(1), (2) and (3) EPC, the presence of an inventive step under Art. 56 EPC requires a nonobvious technical solution to a technical problem. For assessment of inventive step of such a mixed-type invention, all those features which contribute to the technical character of the invention are taken into account. These also include the features which, when taken in isolation, are nontechnical, but do, in the context of the invention, contribute to producing a technical effect serving a technical purpose, thereby contributing to the technical character of the invention. However, features which do not contribute to the technical character of the invention cannot support the presence of an inventive step. Such a situation may arise, for instance, if a feature contributes only to the solution of a nontechnical problem, e.g., a problem in a field excluded from patentability. The problem-solution approach is applied to mixed-type inventions in such a way as to ensure that inventive step is not acknowledged on the basis of features not contributing to the technical character of the invention, while all those features which do contribute are properly identified and taken into account in the assessment. To this end, where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the objective technical problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met. It is likely that blockchain patent applications will continue to proliferate, but it remains to be seen whether these applications can overcome the hurdles of the EPO’s requirements for patentability. Blockchain patent applications may be considered pure software patents. Software patents that take an old idea and “apply it on a computer” or “apply it through the Internet” will be patent ineligible.
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