Notice from the European Patent Office dated 23 November 2021 concerning the staying of proceedings due to referral G 2/21
1. Referral G 2/21 (ʺPlausibilityʺ) is pending before the Enlarged Board of Appeal. The referring board seeks to clarify whether an exception to the principle of the free evaluation of evidence should be accepted in that post-published evidence must be disregarded if the inventive step is acknowledged on the basis of a technical effect and the proof of the effect rests exclusively on such post-published evidence (question 1). It further asks whether, if the post-published evidence is to be disregarded, it can be taken into consideration if the skilled person at the filing date of the patent application would have considered the effect plausible (question 2) or not implausible (question 3). The questions referred to the Enlarged Board of Appeal can be found in decision T 116/18.
2. The President of the EPO has decided that, in view of the potential impact of the referral, all examination and opposition proceedings before the EPO in which the decision depends entirely on the outcome of the referral will be stayed ex officio. The stay will be lifted as soon as possible after the Enlarged Board of Appeal has issued its decision.
3. This concerns patent applications and patents in which the assessment of inventive step is exclusively based on evidence, such as experimental data, which was not publicly available before the filing date of the patent application and which was filed after that date.
4. If proceedings are stayed, the examining or opposition division concerned will inform the parties accordingly (see Guidelines for Examination at the EPO, E-VII, 3). At the same time, it will withdraw any communications setting them time limits to react, and will despatch no further such communications until the Enlarged Board of Appeal has given its decision, whereupon a communication will be issued concerning the resumption of the proceedings.
5. The present notice is applicable with immediate effect.