M&C Reacts: Evidence Of (Im)Plausibility

The intertwined concepts of plausibility and post-published evidence in relation to sufficiency and inventive step have become embedded in European patent practice over the years. The concept originates with the 2005 Board of Appeal decision T1329/04, which held that, firstly, for inventive step to be recognised, the patent application must at least make plausible that the problem addressed by the invention is solved; and secondly that post-published data confirming that the problem has been solved can be used in evidence, but if the initial plausibility threshold is not met, then this data should not be taken into account. For a recent example where these concepts are applied, see our article on T2015/20, concerning the treatment of asthma.