Use Of The EPO's Problem-And-Solution Approach For Assessing Inventive Step At The UPC

A recent decision (UPC_CFI_501/2023) concerning infringement and validity of European Patent 3,669,828 by the Court of First Instance, Munich Local Division of the Unified Patent Court (UPC) has set out that the problem-and-solution approach developed by the European Patent Office (EPO) should be the primary tool used to assess inventive step in proceedings of the UPC. The decision stated that this was to ensure legal certainty and to further align the jurisprudence of the UPC with the jurisprudence of the European Patent Office and the EPO's Boards of Appeal.

The problem-and-solution approach
The EPO's problem-and-solution approach is a framework for assessing whether an invention shall be considered obvious having regard to the state of the art. It has been developed by the EPO over a number of years (although its use is not, strictly, a requirement of European practice). In a simplified form, the problem-and solution approach identifies whether an inventive