Patents, Plausibility And Data: One Year On From G 2/21

• Published date: 05 April 2024
• Law Firm: Keltie LLP
• Author: Matt Aldridge

On 23 March 2023, the European Patent Office (EPO) Enlarged Board of Appeal (EBA) published its decision in case G 2/21, concerning plausibility in patent applications. The decision provided useful guidance on how much data needs to be disclosed in a patent application to overcome objections based on the grounds of lack of inventive step and insufficiency. One year on, we take a look at how the EPO has been applying this standard in the life sciences field.

EBA addresses plausibility

Case G 2/21 concerned a patent application for an insecticide composition used for controlling an insect pest. The applicant argued that the two claimed compounds had a synergistic effect which resulted in improved insecticide activity. However, this effect was only supported by test data published after the filing date of the patent application.

The Board clarified two principles for assessing whether post-published evidence may be relied upon in assessing inventive step:

1. Evidence submitted by a patent applicant to prove a technical effect relied upon for inventive step may not be disregarded solely on the ground that such evidence was filed after the filing date of the application.
2. A patent applicant may rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally...