{"id":29889,"date":"2025-10-14T10:33:38","date_gmt":"2025-10-14T10:33:38","guid":{"rendered":"https:\/\/www.sib.it\/?p=29889"},"modified":"2025-10-15T13:14:44","modified_gmt":"2025-10-15T13:14:44","slug":"english-epos-enlarged-board-of-appeal-rules-in-g-1-23-on-the-interpretation-of-reproducibility","status":"publish","type":"post","link":"https:\/\/www.sib.it\/en\/flash-news\/epos-enlarged-board-of-appeal-rules-in-g-1-23-on-the-interpretation-of-reproducibility\/","title":{"rendered":"EPO\u2019s Enlarged Board of Appeal rules in G 1\/23 on the interpretation of \u201creproducibility\u201d"},"content":{"rendered":"

In its decision in case G 1\/23, the Enlarged Board of Appeal of the European Patent Office has delivered a decisive interpretation of Article 54(2) EPC, removing reproducibility as a condition for a product to constitute prior art.<\/em><\/p>\n

 <\/p>\n

On 2 July 2025, the Enlarged Board of Appeal (EBoA) of the European Patent Office issued its decision in case G 1\/23<\/a>, bringing clarity to a long-standing question: Can a product that has been put on the market, but whose composition cannot be fully analyzed or reproduced, constitute prior art under Article 54(2) EPC?<\/em><\/p>\n

This referral, stemming from decision T438\/19, addressed a conflicting interpretation of the earlier opinion G 1\/92, stating that a product\u2019s composition is part of the state of the art when the product is available to the public and can be both analysed and reproduced<\/u> by the skilled person (enablement requiremen<\/em>t). Some decisions (e.g. T\u202f1833\/14, T\u202f0023\/11) interpreted G\u202f1\/92 narrowly, excluding non-reproducible products from the state of the art. Others (e.g. T\u202f946\/04, T\u202f1666\/16) acknowledged the product as prior art but excluded internal structural features that could not be derived.\"European<\/p>\n

In G\u202f1\/23, the EBoA resolved that conflict and held that reproducibility is not a requirement for prior art status under Article 54(2) of the European Patent Convention (EPC) \u2014 a product becomes prior art when made publicly available, regardless of whether it can be reproduced from scratch.<\/p>\n

Interpreting \u201cReproducibility\u201d: A Broader Approach<\/span><\/h2>\n

The EBoA first considered the narrow reading of \u201creproduce<\/em>\u201d – meaning that the skilled person must be able to manufacture a product anew from starting materials- as problematic: Many products \u2014 especially those derived from natural or proprietary sources \u2014 cannot realistically be reproduced, even though they are widely available Such an approach would lead to a \u201cmanifestly absurd result<\/em>\u201d (Reasons 60-62) creating a legal fiction detached from real-word commercial and scientific practice.<\/p>\n

Instead, the EBoA adopted a broader interpretation: reproducibility includes the ability to obtain or possess the marketed product. In this sense, any product put on the market is inherently reproducible \u2013 at least in terms of accessibility \u2013 and should be considered publicly available under Article 54(2) EPC. Therefore, a product\u2019s composition is part of the state of the art when the product as such is publicly available before the filing date and can be analysed by the skilled person.<\/p>\n

Key holdings of the Decision<\/span><\/h2>\n

Building on such reasoning, the EBoA ruled that a product put on the market before the filing date of a patent application cannot be excluded from the state of the art solely because its composition or internal structure could not be analysed and reproduced by the skilled person (Headnote 1) and that technical information about such product made publicly available (e.g. brochures, datasheets, scientific publications) before the filing date also forms part of the state of the art (Headnote 2).<\/p>\n

The third question referred \u2014 concerning the criteria for analysability and reproducibility \u2014 was deemed moot and left unanswered, as the Board found that the issue of reproducibility no longer required resolution under the revised framework.<\/p>\n

Further Observations<\/em><\/span><\/h3>\n

In addition to its central findings, the EBoA provided several important clarifications:<\/p>\n