G 0001/23 (Interpretation of G 1/92 (enablement requirement for products put on the market for forming part of the state of the art within the meaning of Articles 54(2) and 56 EPC)) of 02.07.2025
- European Case Law Identifier
- ECLI:EP:BA:2025:G000123.20250702
- Date of decision
- 2 July 2025
- Case number
- G 0001/23
- Petition for review of
- -
- Application number
- 11830390.8
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- Other decisions for this case
- -
- Abstracts for this decision
- Abstract on Article 054(2) EPC
- Application title
- SOLAR CELL SEALING MATERIAL, AND SOLAR CELL MODULE
- Applicant name
- Mitsui Chemicals, Inc.
Mitsui Chemicals ICT Materia, Inc. - Opponent name
- Borealis GmbH
- Board
- -
- Headnote
I. A product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.
II. Technical information about such a product which was made available to the public before the filing date forms part of the state of the art within the meaning of Article 54(2) EPC, irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure before that date.
- Relevant legal provisions
- European Patent Convention Art 112(1)European Patent Convention Art 117(1)(f)European Patent Convention Art 54(2)European Patent Convention Art 56European Patent Convention Art 83Rules of procedure of the Enlarged Board of Appeal Art 10Rules of procedure of the Enlarged Board of Appeal Art 9
- Keywords
- Admissibility of referral (yes)
Product put on the market - requirement of reproducibility for prior art status under Article 54(2) and 56 EPC (no)
Not reproducible properties taken into account for novelty and inventive step (yes) - Catchword
- -
3. Order
The questions referred to the Enlarged Board of Appeal are answered as follows:
1. A product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.
2. Technical information about such a product which was made available to the public before the filing date forms part of the state of the art within the meaning of Article 54(2) EPC, irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure before that date.
3. In view of the answers to Questions 1 and 2 an answer is not required.