Subsequent decisions found any comparison with the prior art to be inappropriate for determining whether or not an invention was present.

In T 1173/97 (OJ 1999, 609) the board consciously abandoned the "contribution approach" and found that compliance with Art. 52(2), (3) EPC can be established by features already known in the art. Determining the technical contribution an invention achieves with respect to the prior art is more appropriate for the purpose of examining novelty and inventive step than for deciding on possible exclusion under Art. 52(2) and (3) EPC 1973. In T 931/95 (OJ 2001, 441) it was stated that there is no basis in the EPC for distinguishing between "new features" of an invention and features of that invention which are known from the prior art, when examining whether the invention concerned may be considered to be an invention within the meaning of Art. 52(1) EPC 1973. Thus there is no basis in the EPC for applying the so-called contribution approach for this purpose (see also; T 1001/99, T 388/04, OJ 2007, 16; T 619/02, OJ 2007, 63; T 553/02; T 258/03, OJ 2004, 575).