![]() ![]() The concept of the closest prior art within the problem solution approach has been invented to facilitate and objectivize the examination of inventive step. the question of what is (or should be) the closest prior art, and whether the EPO’s approach towards the closest prior art has changed in the last couple of years. This contribution will focus on question (i), i.e. This is because parties nowadays frequently argue about (i) what the closest prior art was, (ii) what the objective problem was, and of course (iii) whether the invention, expressed as the solution to the objective technical problem, was obvious or not at the priority or filing date. One might quip that this approach has replaced a single problem (the determination of obviousness/inventive step) with three problems. ![]() This involves (1) the determination of the “closest prior art”, (2) the formulation of the “objective technical problem”, and (3) the assessment whether or not the claimed invention would have been obvious to the skilled person. This approach breaks the statutory question of Art 56 whether the invention was, having regard to the state of the art, obvious to a person skilled in the art, down into a 3-step test. █Īs readers of this blog will be aware, the EPO applies a quite peculiar and unique method to the analysis of inventive step, the “problem-solution approach”. One can guess how the EPO's management responded. AstraZeneca Kat wrote about it yesterday, calling it “a majority judgment” why were these patents granted in the first place? And how many European Patents, if scrutinised properly, would suffer the same fate? SUEPO showed (about a year ago) how legal validity associated with European Patents had collapsed. SEEING that Kluwer Patent Blog’s best author has just dealt with the EPO‘s controversial “Closest Prior Art” approach ( below we wrote about this in ), and moreover seeing that the UK Supreme Court threw out European Patents that “sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice,” we’re witnessing yet more evidence of the comprehensive failure of the EPO under Benoît Battistelli and António Campinos, whose rush to grant as many patents as possible by rushing searches (aka Early Certainty From Google) led not only to grants of software patents in Europe but also grants/awards of monopolies that courts everywhere would reject (if one can afford the legal challenge it’s expensive to appeal all the way up to the UK Supreme Court). Summary: Yet again, quite frankly as usual, the UK Supreme Court tosses European Patents right in the wastebasket it’s clear that the only winner is a bunch of law firms which bicker over patents that should never have been granted in the first place Good for wealthy monopolists and their law firms bad for everybody else Posted in Courtroom, Europe, Patents at 11:07 pm by Dr. The EPO’s ‘Early Certainty From Google’ Approach (“Closest Prior Art”) Means Loads of Fake European Patents and Frivolous Litigation/Shakedowns
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