Written Decision Referring Questions Concerning The Doctrine Of Plausibility To The Enlarged Board Of Appeal In G2/21 Now Available

• Published date: 02 November 2021
• Subject Matter: Intellectual Property, Patent
• Law Firm: J A Kemp LLP
• Author: Mr Ravi Srinivasan

We reported in August 2021 that the EPO's Enlarged Board of Appeal (EBA) would be considering the doctrine of plausibility at the EPO. The written decision of Board of Appeal making the referral is now available (see here), and the referral has been assigned the number G2/21. The final questions referred to the EBA are as follows:

"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...