Tuesday, September 12, 2017 T 1329/04 - Post-published evidence cannot be sole basis of inventive step

In the decision T 488/16, recently discussed in this blog, it became again clear that the EPO is strict in allowing post-published evidence to prove inventive step. The core decision where this follows from is this decision, T 1329/04. 

The cathwords of this decision: The definition of an invention as being a contribution to the art, i.e. as solving a technical problem and not merely putting forward one, requires that it is at least made plausible by the disclosure in the application that its teaching solves indeed the problem it purports to solve. Therefore, even if supplementary post-published evidence may in the proper circumstances also be taken into consideration, it may not serve as the sole basis to establish that the application solves indeed the problem it purports to solve.

Thus, post-published evidence of a technical effect/advantage is allowed as long as there was enough information in the application as filed to make this 'new' information already plausible.