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European Patent Convention - This area contains legal texts from the EPO, including the European Patent Convention, Ancillary regulations to the EPC, National law relating to the EPC, Guidelines for Examination, and much more.
To determine whether the claimed invention, starting from the closest prior art and the objective technical problem, would have been obvious to the skilled person, the boards apply the "could-would approach" (see also Guidelines G?VII, 5.3 – November 2015 version). This means asking not whether the skilled person could
In order to assess inventive step in an objective and predictable manner, the so-called "problem-and-solution approach" should be applied. Thus deviation from this approach should be exceptional. In the problem-and-solution approach, there are three main stages: (i). determining the "closest prior art",. (ii). establishing the
12 Jan 2017 Here is a commented summary extracted from the EPO
Is there any teaching in the prior art, as a whole, that would, not simply could, have prompted the skilled person, faced with the objective technical problem formulated when considering the technical features not disclosed by the closest prior art, to modify or adapt said closest prior art while taking account of that teaching [the
Table of Contents - Guidelines for Examination temperature ranges or other parameters from a limited range of possibilities, and it is clear that these parameters could be arrived at by routine trial and error or by the The prescribed rates are merely those which would necessarily be arrived at by the skilled practitioner.
Could?would approach. In the third stage the question to be answered is whether there is any teaching in the prior art as a whole that would (not simply could, but would) have prompted the skilled person, faced with the objective technical problem, to modify or adapt the closest prior art while taking account of that teaching,
whether the content of the disclosures (e.g. documents) is such as to make it likely or unlikely that the person skilled in the art, when faced with the problem solved by the invention, would combine them – for example, if two disclosures considered as a whole could not in practice be readily combined because of inherent
13 Dec 2016 1. Determine the closest prior art. 2. Based on this, establish the objective technical problem to be solved. 3. Consider whether the claimed invention, starting from the closest prior art and the objective technical problem, would have been obvious to a skilled person. 7. EPO Guidelines. G-VII, 5
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