T 1044/23 vom 24.09.2025

Late-filed evidence - should have been submitted in first-instance proceedings (yes)
Novelty - public prior use
Novelty - state of the art
Novelty - availability to the public
Inventive step - closest prior art
Inventive step - non-obvious modification

Decision G 0001/23 does not exclude that a non reproducible product be selected as the closest prior art. Instead the specific circumstances of the case should be analysed.
The extent to which a non-reproducible product must be modified to obtain the claimed subject-matter, and the level of knowledge about that product and its manufacture required to achieve it, are not yet relevant for determining whether the product can be regarded as the closest prior art. These aspects instead relate to later stages of the problem-solution approach, namely identifying the distinguishing features between the product and the claimed subject-matter and/or assessing whether the skilled person, starting from that product, would have been able to obtain the claimed one (Reasons 5.1.3 to 5.1.11).