Preliminary Opinion On G 1/23

Previous case G1/92 referred questions to the Enlarged Board of Appeal regarding whether the chemical composition of a product is made available to the public by virtue of putting the product on the market.

The Enlarged Board concluded in G 1/92 that:

1. The chemical composition of a product is state of the art when the product as such is available to the public and can be analysed and reproduced by the skilled person, irrespective of whether or not particular reasons can be identified for analysing the composition.
2. The same principle applies mutatis mutandis to any other product.

Since G 1/92 was decided, there have been many decisions by Technical Boards of Appeal that have referred to G 1/92. These have led to differing applications of G 1/92. This has resulted in divergent decisions with regard to the interpretation of "available to the public", the degree of detail required of the analysis of the product and the requirements for its reproducibility.