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ARTICLE · 28 AUGUST 2024

Does A Commercially Available Product Make Your Invention Unpatentable?

Potter Clarkson LLP
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A preliminary view (G 1/23) from the European Patent Office may push technology businesses in all fields to re-evaluate their commercial planning and IP strategies.

United KingdomIntellectual Property
Veronika Brázdová
Veronika Brázdová
David Carling
David Carling
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A preliminary view (G 1/23) from the European Patent Office may push technology businesses in all fields to re-evaluate their commercial planning and IP strategies. The view focusses on when a commercially available product that was on sale before the filing date, but is not easily reproducible, negatively impacts patentability of new technology. We expect that the impact will be felt most strongly in the chemistry and software sectors and explore the implications below.

ANALYSABLE AND REPRODUCIBLE PRODUCTS

Under the EPC, a relevant disclosure is anything "made available" to the public, including anything on sale, before the filing date of a patent application. According to prevailing case law, a disclosure must also be "enabling" to be relevant, and a product on the market meets this requirement if someone skilled in the art would be able to analyse it and reproduce it without undue burden. In contrast, placing a product put on the market is not considered to

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