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The most important element in this opinion is not that the referral by the EPO President was declared inadmissible, but that the Enlarged Board of Appeal very clearly expressed support for the approach followed in T 154/04 (Duns): "An elaborate system for taking that effect into account in the assessment of whether there is an inventive step has been developed, as laid out in T 154/04, Duns." and "It would appear that the case law, as summarised in T 154/04, has created a practicable system for delimiting the innovations for which a patent may be granted."

The core element in T 154/04 is "Novelty and inventive step, however, can be based only on technical features".
This effectively eliminates European patents for claims which merely use existing technology as a platform for something without technical character, as such claims will fail to be patentable for lack of inventive step.

It is thus not important whether a claim formally relates to patentable subject matter by reciting some known technical element to escape the exclusions of Article 52 (2, 3) EPC, as a claim which merely uses existing technology as a platform for something without technical character will be deemed to be obvious.

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