This text is intended for publication in the Official Journal (OJ) of the EPO. It is made available in advance on the EPO website merely as a courtesy to the public. Only the text subsequently published in the officially certified PDF file of the OJ is authentic. It cannot be guaranteed that this advance version accurately replicates that text.
In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.02 has referred the following points of law to the Enlarged Board of Appeal by interlocutory decision of 11 October 2021 in case T 116/18:
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):
1. 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?
2. 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)?
3. 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)?
The text of the referral in English is available on the EPO website under epo.org/law-practice/case-law-appeals/recent/t180116ex1.html.
The Enlarged Board of Appeal considering the referral will be composed as follows: C. Josefsson (Chairman), I. Beckedorf, F. Blumer, T. Bokor, P. Catallozzi, P. Gryczka, A. Ritzka.
Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2015, A35) in one of the official languages of the EPO (English, French or German).
To ensure that any such statements can be given due consideration they should be filed by 29 April 2022 with the Registry of the Enlarged Board of Appeal, quoting case number G 2/21, and should be marked for the attention of Mr Nicolas Michaleczek (EBAamicuscuriae@epo.org).