SONN Patentanwälte – IP Attorneys

EPO case law: Requirements regarding public prior use

According to the decision in G 1/92 of the EBA, the chemical composition of a product belongs to the state of the art if the product itself is accessible to the public and can be analysed and reproduced by a person skilled in the art. Point 1.4 of the reasons for the decision of this decision states: "An essential purpose of any technical teaching is to enable the person skilled in the art to manufacture or use a given product by applying such teaching. Where such teaching results from a product put on the market, the person skilled in the art will have to rely on his general technical knowledge to gather all information enabling him to prepare the said product. Where it is possible for the skilled person to discover the composition or the internal structure of the product and to reproduce it without undue burden, then both the product and its composition or internal structure become state of the art". Those passages also imply that a product put on the market is considered not to have been made available to the public within the meaning of Article 54(2) EPC if the skilled person had no means of establishing the composition or the internal structure of the product at the priority/filing date or was not able to reproduce it at the priority/filing date, in spite of the product being publicly available before the priority/filing date of the patent (EPO BoA 7 December 2017, T 1833/14).