Tuesday, 27 October 2015

New EPO Guidelines - Common General Knowledge is Back

The EPO's new Guidelines for Examination applicable as of next week (November 1, 2015) have been published and it is time for practitioners to check out what is in for them.

 Section H IV 2.2 defining the basic principle  of allowability of amendments under Art. 123(2) EPC, i.e. the content of the documents of originally filed, has been amended as follows:
Under Art. 123(2), it is impermissible to add to a European application subject-matter which the skilled person cannot derive directly and unambiguously, using common general knowledge, is not directly and unambiguously derivable from the disclosure of the invention as filed.
Hence, the use of common general knowledge has been added. It is true that EPO examiners (or opponents) sometimes forgot that the person skilled in the art does not switch off his common general knowledge when reading patent documents and this blogger appreciates this clarification.

Did any of our readers find other points of practical interest in the amendments? PatLit would be pleased to share your observations.

Michael Thesen


Ely said...

Many thanks for pointing out this important change!

While this is only the Exmination guidelines, it certainly points towards a change in official view at the EPO which could mean a weakening of inadmissible broadening attacks in opposition.

GoldStandardBearer said...

Was this not already there in old Section 2.3? I see this as cosmetic.

"The term "implicit disclosure" means no more than the clear and unambiguous consequence of what is explicitly mentioned in the application as filed. Thus, the common general knowledge must be taken into account in deciding what is clearly and unambiguously implied by the explicit disclosure of a document."

Ely said...

Further to my earlier email - there is a mistake where the underlining shown above starts. But a person with common general knowledge knows where to find the official EPO text.