Can Post-filed Data Be Used In Support Of Inventive Step?

Introduction

As discussed in an earlier article in this series, there is no 'ideal' time for filing a patent application. A trade-off must be made between filing the 'perfect' patent application with data that exhaustively cover all possible embodiments falling within the scope of an ideal broad claim, and the need to secure legal certainty by obtaining a filing date. So, what happens if you need to file your application, but you don't have time to obtain all the required data before the filing date? Can anything be done down the line to improve the situation, if necessary? Our previous article discussed whether post-filed data can be used to support sufficiency, particularly in relation to second medical use claims. In this article, we discuss whether post-filed data can be relied upon during patent proceedings before the European Patent Office (EPO) in support of inventive step.