Institute of Professional Representatives before the European Patent Office
New referral to the Enlarged Board of Appeal G 2/21 concerning the use of post-published evidence to establish plausibility for an invention
October 26, 2021
In a <a href=“https://www.epo.org/law-practice/case-law-appeals/recent/t180116ex1.html”target=“_blank“>decision of the Board of Appeal in case T 0116/18, three questions have been referred to the Enlarged Board concerning how to regard post-published evidence filed in support of inventive step. The referral is pending under G 2/21.
The three questions ask whether the evidence should disregarded, and depending on the answer, under what circumstances post-published evidence can be taken into consideration in relation to plausibility.
The EPO’s communication on the referral can be found <a href=“https://www.epo.org/law-practice/case-law-appeals/communications/2021/20211021.html”target=“_blank“>here .