4.5. Alternative solution to a known problem

In T 92/92 the board noted that Art. 56 EPC 1973 did not require that the problem to be solved should be novel in itself. The fact that the underlying problem of the patent had already been solved by the prior art did not necessarily require redefinition of the problem for the assessment of inventive step, if the subject-matter of the patent represented an alternative solution to this problem. In this context the board referred in particular to decision T 495/91. In this case too, the problem stated in the patent specification had already been solved. The problem to be objectively solved was the provision of an alternative process and of apparatus which made it possible to produce a floor covering with specific properties by simple and low-cost means (see also T 780/94, T 1074/93, T 323/03, T 824/05).

According to T 588/93, for an inventive step to be present, it was not necessary to show improvement - substantial or gradual - over the prior art. Thus an earlier solution to a given technical problem did not preclude later attempts to solve the same problem in another, non-obvious way (T 1791/08).

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