SV / EN

Must Assertions made in European Patents be Plausible, or is Invention a Question of Faith instead of Fact?

Publicerad i Stockholm IP Law Review 2023 #1, december 2023 s. 47–61

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The concept of ”plausibility” is used to test the quality of information that a patent application must contain to support valid claims. A significant divergence between the way the UK courts apply the concept, and the way the European Patent Office and Courts in other European jurisdictions may apply the concept, is looming on the horizon following the Enlarged Board of Appeal’s opinion in G 2/21 (Sumitomo). The opinion opens the way for patentees to rely on information that is not contained in the patent application, nor the state of the art, to support assertions made in the application. Allowing patentees to rely on such additional information, equivalent to ”added matter”, is likely to negatively impact the credibility of the European Patent System.