Preliminary Opinion Published In G2/21 ("Plausibility")

As we reported previously, the EPO's Enlarged Board of Appeal is to consider the question of the admissibility of post-published evidence in the consideration of inventive step, in referral G2/21. In brief, the questions asked of the Enlarged Board may be paraphrased as "must post-filing evidence be disregarded if it provides the sole proof of a technical effect in support of inventive step?"; and if so, is this the case in circumstances in which the patent in question either makes this effect "plausible" or at least "not implausible".

A hearing date has been set for 24 November 2022, and the Board has now issued its non-binding preliminary opinion which identifies what, in the Board's view, are the key issues to be discussed. The opinion also takes into account comments submitted by the President of the EPO, and in the 20 amicus curiae briefs filed.