The Enlarged Board of Appeal of the European Patent Office issued the decision in referral G2/21 on 23 March 2023. This referral concerned the admissibility of post-published evidence in the assessment of inventive step.

The headnote to the decision states:

  1.  Evidence submitted by a patent applicant or proprietor to prove a technical effect relied upon for acknowledgement of inventive step of the claimed subject-matter may not be disregarded solely on the ground that such evidence, on which the effect rests, had not been public before the filing date of the patent in suit and was filed after that date.
  2.  A patent applicant or proprietor may rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention.

We are reviewing the decision in full and will provide a further update in due course.

If you have any questions about the decision, please contact Joanna Peak or your usual Boult Wade Tennant advisor.

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