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At the EPO, inventive step is tested through the problem-solution approach. And the strongest tool you have is to let your patent application tell the story of the invention. So, what exactly is the problem-solution approach, and how can your invention story help?
The problem-solution approach is the EPO’s structured way of assessing inventive step, and it unfolds in three main steps. Step one is identifying the closest prior art, which is a single disclosure directed to a similar purpose or effect as the invention. Step two is defining the objective technical problem by comparing the invention with that prior art, identifying the distinguishing features, and examining the technical effects those features achieve. Step three is deciding on obviousness, by asking: Starting from the closest prior art and faced with the objective problem, would the skilled person arrive at the claimed invention? So how can a well-drafted patent application prepare for this test? A strong application isn’t just a list of features, it tells the story of your invention. It sets out the background by describing the field of the invention and what is already known, then defines the problem by highlighting the shortcomings of existing solutions, and finally presents the solution — your invention — described feature by feature. The key when drafting is to proactively describe the technical effect of each feature, not just the independent claims, but also your dependent claims. This way, every part of the invention contributes to the overall story and can be relied on later if needed. By explicitly identifying technical effects, you create a stronger basis to argue inventive step. You can enrich the story by highlighting a surprising effect or a synergistic effect from combining features to make your patent more resilient in examination. In the end, the invention story is yours to tell, and the problem–solution approach is merely the stage. By drafting proactively and describing the technical effect in your application, you set the narrative early on and are prepared, rather than having to defend it later.
Telling the right invention story can make all the difference. For more practical examples and guidance on this and similar topics, I invite you to follow our channel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
