On 27 June 2023, in case T 438/19, Technical Board 3.3.03 referred key questions to the Enlarged Board of Appeal about the conditions under which a product forms part of the state of the art under Article 54(2) EPC. These questions gave rise to decision G 1/23, issued on 2 July 2025.
The EPO's Enlarged Board of Appeal (EBA) has now ruled that any product placed on the market before the filing date of a European patent application qualifies as prior art - even if it cannot be analysed or reproduced by a skilled person.
The EBA clarifies that:
- Public availability is enough: If the product could be accessed by the public (e.g. sold on the market), it belongs to the prior art - no need for reproducibility.
- Technical info counts too: Brochures, datasheets, and other public documentation related to the product also form part of the state of the art.
What changed?
The EBA overturned prior interpretations (notably G 1/92) that had implied a requirement for reproducibility. From now on, reproducibility is not a condition: if a product was publicly available, it can destroy novelty - even if its internal structure remains unknown.
This decision significantly broadens what can be cited as prior art. Even proprietary or complex commercial products that cannot be reverse-engineered may still be novelty-destroying.
The EBA has clarified the law: a product made available to the public is disclosed - full stop.
Still, the practical challenge remains: how much of a product is truly "disclosed" if its key features cannot be determined? In many cases, meaningful disclosure will depend on whether a sample can be obtained and analysed using standard techniques.
To be continued...
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