EPO decision G 1/23 introduces a significant shift in how publicly available products are treated concerning prior art, overriding the previous requirement that a product must be analyzable and reproducible to qualify. This new interpretation allows any publicly available product to contribute technical information toward novelty and inventive step assessments. The decision aligns European patent law more closely with U.S. practices but maintains distinct differences. Practical implications for patent practitioners span all technical fields, necessitating adjustments in evaluating product disclosures and market materials.
The EBA held that once a product is available for public inspection or use, it becomes part of the state of the art, and any technical information that is derivable from it, such as its measurable or observable properties, must also be considered in novelty and inventive step assessments.
G 1/23 has broad implications for patent practitioners across all technical fields, as it reshapes the boundaries of what constitutes prior art under the European Patent Convention and affects how publicly available products, product descriptions, and marketing materials, are assessed in determining novelty and inventive step.
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