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29
June 2023
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 3.3.03 has by interlocutory decision T 438/19 referred the following questions to the Enlarged Board
of Appeal (referral pending under G 1/23 “solar cell”):
1. Is a product put on the market before the date of
filing of a European patent application 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?
2. If the answer to question 1 is no, is technical
information about said product which was
made available to the public before the filing date
(e.g. by publication of technical brochure, non-patent or patent literature)
state of the art within the meaning of Article 54(2) EPC, irrespective of whether the
composition or internal structure of the product could be analysed and
reproduced without undue burden by the skilled person before that date?
3. If the answer to question 1 is yes or the answer to question 2 is no, which criteria are to be applied in
order to determine whether or not the
composition or internal structure of the product could be analysed and
reproduced without undue burden within the meaning of opinion G 1/92? In
particular, is it required that the
composition and internal structure of the product
be fully analysable and identically reproducible?
Contact
Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office
[email protected]