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
([email protected]).