The Board of Appeal in T 438/19 referred questions to the Enlarged Board of Appeal regarding the issue of anticipation by prior use. The case is pending as G 1/23 and oral proceedings by videoconference have now been scheduled for 12 March 2025.
Our previous comments relating to the referral can be found here, and the questions referred by the Board of Appeal are as follows:
- Is a product put on the market before the date of filing of a European patent application to be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced without undue burden by the skilled person before that date?
- If the answer to question 1 is no, is technical information about said product which was made available to the public before the filing date (e.g. by publication of technical brochure, non-patent or patent literature) state of the art within the meaning of Article 54(2) EPC, irrespective of whether the composition or internal structure of the product could be analysed and reproduced without undue burden by the skilled person before that date?
- If the answer to question 1 is yes or the answer to question 2 is no, which criteria are to be applied in order to determine whether or not the composition or internal structure of the product could be analysed and reproduced without undue burden within the meaning of opinion G 1/92? In particular, is it required that the composition and internal structure of the product be fully analysable and identically reproducible?
Members of the public can watch the oral proceedings via a livestream. A link to the livestream will be published here as of 5 March 2025.