The Enlarged Board of Appeal of the European Patent Office issued a ruling on “plausibility” on 23 March 2023. Peter de Lange, patent attorney at V.O.: “For practice, this is an important ruling, especially for pharma, life sciences and chemistry. In those fields, you always have to check whether the client has sufficient experimental data to support the invention in the application.
The Enlarged Board has now confirmed that there is indeed a threshold, with the criterion being whether the person skilled in the art can infer the surprising advantages of the invention from the technical teachings of the patent application. The Board acknowledges that this is an abstract criterion. V.O.’s patent attorneys can advise with their technical expertise what is sufficient for a specific invention.”