Notice from the European Patent Office dated 24 April 2023 concerning the resumption of proceedings following decision G 2/21 of the Enlarged Board of Appeal
This text is intended for publication in the Official Journal (OJ) of the EPO. It is made available in advance on the EPO website merely as a courtesy to the public. Only the text subsequently published in the officially certified PDF file of the OJ is authentic. It cannot be guaranteed that this advance version accurately replicates that text.
1. On 23 November 2021, the President of the European Patent Office (EPO) decided to stay, ex officio, all proceedings before EPO examining and opposition divisions in which the decision depended entirely on the Enlarged Board of Appeal's decision on referral G 2/21 (see OJ EPO 2021, A87).
2. On 23 March 2023, the Enlarged Board of Appeal issued decision G 2/21, in which it confirmed that there is no exception to the principle of free evaluation of evidence in proceedings before the EPO. Evidence submitted by a patent applicant or proprietor to prove a technical effect relied upon for acknowledgement of inventive step of the claimed subject-matter therefore may not be disregarded solely on the ground that such evidence, on which the effect rests, is post-published. In addition, the Enlarged Board of Appeal found that a patent applicant or proprietor may rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention.
3. The President of the EPO has decided to lift the stay with effect from 24 March 2023. Affected proceedings will be gradually resumed. A communication regarding the resumption of proceedings will be issued in each of the cases concerned.