G 1/23 clarifies when commercially available products are to be considered prior art
The eagerly awaited European Patent Office (EPO) decision G 1/23 has issued and provides clarity concerning the extent to which products that are commercially available before a patent application is filed must be analysable and reproducible by the skilled person, in order to constitute prior art under the European Patent Convention (EPC).
The Enlarged Board of Appeal concludes that a skilled person’s inability to analyse and reproduce the composition or internal structure of a product before the filing date of a patent application cannot be considered the sole reason for excluding that product as prior art.
Furthermore, the Enlarged Board of Appeal clarifies that irrespective of whether the skilled person could analyse and reproduce a product and its composition or internal structure before the filing date of a patent application, technical information about such a product which was made available to the public before that date forms part of the state of the art.
We will publish our full review of this decision in due course.
