Across Europe, the question to be asked when assessing inventive step is: would the invention have been obvious to the person skilled in the art at the priority date? However, there is no mandated test or framework for assessing this question, and so the EPO and different national courts have developed their own approaches. These approaches range from the EPO’s “problem-solution approach”, which provides a sequence of steps that is often described as rather formulaic, to more “holistic” approaches, such as those of the UK and Germany.
Against that background, the UPC – a specialist court for considering disputes concerning European patents – is still developing its jurisprudence, having only begun operations on 1 June 2023. At the end of 2025, the UPC Court of Appeal handed down two judgments endorsing a more holistic approach to inventive step. Here, we look at the approach set out by the court and assess how it compares to those of the EPO and the national courts.
This article was originally published as a specialist chapter in IAM’s Europe, Middle East and Africa Patent Litigation Review 2027.
You can read it in full on their site here.
J A Kemp LLP acts for clients in the USA, Europe and globally, advising on UK and European patent practice and representing them before the European Patent Office, UKIPO and Unified Patent Court. We have in-depth expertise in a wide range of technologies, including Biotech and Life Sciences, Pharmaceuticals, Software and IT, Chemistry, Electronics and Engineering and many others. See our website to find out more.
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