Article 68

EUROPEAN PATENT OFFICE

Information from the EPO

Notice from the European Patent Office dated 13 July 2023 concerning the staying of proceedings due to referral G 1/23

1. Referral G 1/23 ("solar cell") is pending before the Enlarged Board of Appeal. It relates to whether a product put on the market before the effective filing date of a European patent application is to 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 without undue burden by the skilled person before that date within the meaning of opinion G 1/92 (question 1). If not, does technical information about the product made public before the filing date constitute state of the art (question 2)? Lastly, which criteria are to be applied to determine whether the composition or internal structure of the product could be analysed and reproduced without undue burden within the meaning of opinion G 1/92 (question 3)? The questions referred to the Enlarged Board of Appeal can be found in decision T 438/19.

2. In view of the referral's potential impact, the EPO President has decided to stay ex officio all examination and opposition proceedings before the EPO in which the decision depends entirely on its outcome. The stay will be lifted as soon as possible after the Enlarged Board of Appeal has issued its decision.

3. Where proceedings are stayed, the examining or opposition division concerned will inform the parties accordingly.1 It will also withdraw any communications setting time limits for the parties to react and will set no further limits until the Enlarged Board of Appeal has taken its decision. The division will subsequently inform the parties of when proceedings will resume.

4. This notice applies with immediate effect.