3.2.4 Comparative tests to demonstrate a technical effect achieved by the claimed invention

In T 2371/13, the party as of right (opponent 1) had requested that the test results filed by the respondent during the examination proceedings and those it had filed in response to the statement of grounds of appeal be excluded from the appeal proceedings. The board refused the request for the following reasons: that an effect is implausible owing to the absence of evidence in the patent application is not a sufficient reason for disregarding comparative tests filed subsequently to prove it; disregarding them for that reason is incompatible with the problem-solution approach. As regards taking account of plausibility as part of the inventive-step assessment, and the possibility of considering post-published documents, see also chapters I.D.4.3.3, II.C.6.8. and referral G 2/21.