Not Implausible? EPO's Enlarged Board Hints At A New Bar For Post-Filed Data

The EPO's Enlarged Board of Appeal has issued a communication hinting at a potential relaxing of the law concerning the doctrine of 'plausibility' and the use of post-filed data to support inventive step.

BACKGROUND

In our previous articles (here and here), we reported that due to diverging strands of jurisprudence, the EPO's Boards of Appeal had requested clarification from the Enlarged Board of Appeal on the important issue of the circumstances in which post-filed data may be used as evidence of a technical effect for the purposes of assessing inventive step.

THE FACTS AND ARGUMENTS

The referring Board of Appeal acknowledged the divergence in established case law concerning post-filed data, and so referred the following questions (paraphrased) to the Enlarged Board of Appeal: