EPO EBoA decision G1/23 clarifies principles on what represents prior art
Decision G1/23 of the EPO Enlarged Board of Appeal (EBoA) was published on 2 July 2025.
Headnote:
1. A product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.
2.Technical information about such a product which was made available to the public before the filing date forms part of the state of the art within the meaning of Article 54(2) EPC, irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure before that date.
The decision reinforces the principle that the enablement requirement should play no role in deciding whether a commercially available product – and related technical information – is to be considered as made available to the public or not. In other words, public availability is what matters not whether reverse engineering is possible.
It appears that the opponent’s argument already sums it up perfectly: “Imagining that Coca-Cola was not known and could not constitute prior art would be manifestly unreasonable.”
This might sound like bad news for patentees but – based on Reason 96 of the decision – it appears that the weight this ruling carries is case-dependent and hinges on the specific technical teaching it conveys in relation to the invention.
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