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ARTICLE · 21 MARCH 2023

Purely Novel?

Aera A/S
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The decision T1085/13 of 2018 from the BoA cast the first stone, to shatter the view on novelty of a degree of purity, set out in T 990/96.

European UnionIntellectual Property
Johannes Wehner
Johannes Wehner
Nikolaj Riis Christensen
Nikolaj Riis Christensen
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The Boards of Appeal (BoA) at the European Patent Office (EPO) finally seem to believe novelty in purity questions should be addressed by the golden standard for addressing novelty in other cases, thereby overthrowing the long outstanding special status of purity when facing prior art. In summary, in the decision T1085/13 and now with T0043/18 referring to T1085/13, the BoA seem to accept a new paradigm for assessing novelty in questions of purity, which aligns with the golden standard set out by G2/88 and G2/10. The question that remains is, when the Guidelines for Examination will be aligned with the view of the Boards of Appeal?

The golden standard for assessing novelty of a claimed invention has for long relied on implicit disclosure of claimed subject-matter in the prior art (G 2/88, G 2/10), where the burden of proof is in general placed on the patent office (or opposing third party).

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