The highest decision making authority at the European Patent Office, the Enlarged Board of Appeal (EBA), has been asked to consider whether a patentee can rely on documents dated after the filing date of its patent application for proving inventive step.
In opposition proceedings for EP2484209, the patentee argued that these later published documents, together with data in the filed application, corroborated the inventiveness of their application as, together, they showed their claimed insecticide had a synergistic technical effect. This later obtained data was thought to be crucial to determining inventiveness and also the scope of the claim that was acceptable. Thus there was a need to refer the question of whether later published data could be relied on during examination or opposition of a patent application or granted patent to demonstrate inventiveness and determine claim scope.
The referred case is expected to be G2/21 and the outcome will be reported when available.