21 October 2021
Under Art. 112(1)(a) EPC, a Board of Appeal refers a
question to the Enlarged Board of Appeal if it considers that a decision is
required, in order to ensure uniform application of the law or if a point of
law of fundamental importance arises.
Technical Board of Appeal 3.3.02 has by interlocutory
decision T 116/18 referred the following questions to the Enlarged Board of
Appeal (referral pending under G 2/21):
If for acknowledgement of inventive step the patent
proprietor relies on a technical effect and has submitted evidence, such as
experimental data, to prove such an effect, this evidence not having been
public before the filing date of the patent in suit and having been filed after
that date (post-published evidence):
- Should
an exception to the principle of free evaluation of evidence (see e.g. G 3/97,
Reasons 5, and G 1/12, Reasons 31) be accepted in that post-published evidence
must be disregarded on the ground that the proof of the effect rests exclusively
on the post-published evidence?
- If
the answer is yes (the post-published evidence must be disregarded if the proof
of the effect rests exclusively on this evidence), can the post-published
evidence be taken into consideration if, based on the information in the patent
application in suit or the common general knowledge, the skilled person at the
filing date of the patent application in suit would have considered the effect plausible
(ab initio plausibility)?
- If
the answer to the first question is yes (the post-published evidence must be
disregarded if the proof of the effect rests exclusively on this evidence), can
the post-published evidence be taken into consideration if, based on the
information in the patent application in suit or the common general knowledge,
the skilled person at the filing date of the patent application in suit would
have seen no reason to consider the effect implausible (ab initio implausibility)?
