T 0039/93 (Polymer powders) of 14.02.1996

1. New Rule 71a EPC should not be construed as an invitation to file new evidence or other material departing from the legal and factual framework of issues and grounds pleaded and evidenced throughout the proceedings prior to the hearing of the appeal (point 3.3 of Reasons).

2. The technical problem as originally presented, in accordance with Rule 27(1)(c) EPC, in the application or patent in suit, which is to be regarded as the "subjective" technical problem, may require reformulation on the basis of objectively more relevant elements originally not taken into account by the Applicant or Patentee. This reformulation yields a definition of the "objective" technical problem. The latter represents the ultimate residue (effect), corresponding to the objective contribution provided by the subject-matter defined in the relevant claim (features)(Points 5.3.1, 5.3.2, 5.3.3 of Reasons).

3. Whilst generally accepted definitions of the notional "person skilled in the art" do not always use identical language to define the qualities of such a person, they have one thing in common, namely that none of them suggests that he is possessed of any inventive capability. It is the presence of such capability in the inventor which sets him apart from the notional skilled person (point 7.8.4 of Reasons).