"Plausibility Doctrine Found Implausible" in the latest AIPPI newsletter

In the article "Plausibility Doctrine Found Implausible" published in the latest AIPPI newsletter, Cyra Nargolwalla, Managing Partner, comments on the EPO Enlarged Board of Appeal’s decision in G 2/21, issued in March 2023.

The European Patent Office issued the decision G2/21, on 23 March 2023, on whether experimental data submitted after the filing of a #patent could be used in support of the plausibility of a technical effect for the purpose of patentability. The Enlarged Board of Appeal decided that:

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.

The Enlarged Board of Appeal held that these principles would guide the Board of Appeals and other deciding bodies to take a decision on whether post-published evidence may be relied upon when assessing patentability and particularly inventive step.

Read the article: "Plausibility Doctrine Found Implausible"