In G 2/21 of March 23, 2023, the Enlarged Board of Appeal (EBA) decided on the requirements for reliance on a purported technical effect for supporting inventive step, which is often the decisive factor for acknowledging inventive step according to the established evaluation following the EPO’s problem-solution approach. According to Headnote II of G 2/21, 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. If these requirements are fulfilled, also post-filed data can support the technical effect in the absence of such support in the application as filed.
Read the full article by Dr. Eva Ehlich and Dr. Anja Fux published in the 1/2025 issue by epi.
