G 1/23 ("Solar Cell") - New Standard For Prior Art

On 27 June 2023, in case T 438/19, Technical Board 3.3.03 referred key questions to the Enlarged Board of Appeal about the conditions under which a product forms part of the state of the art under Article 54(2) EPC. These questions gave rise to decision G 1/23, issued on 2 July 2025.

The EPO's Enlarged Board of Appeal (EBA) has now ruled that any product placed on the market before the filing date of a European patent application qualifies as prior art - even if it cannot be analysed or reproduced by a skilled person.

The EBA clarifies that:

• Public availability is enough: If the product could be accessed by the public (e.g. sold on the market), it belongs to the prior art - no need for reproducibility.