Belongs to a product, that is available on the market, to the state of the art, even if a specialist cannot recreate it exactly? The Enlarged Board of Appeal of the European Patent Office discussed this question on 2. July 2025 in G 1/23 clearly affirmed.

background

According to the older decision G 1/92 the chemical composition of a product was only considered to be disclosed, when the specialist analyze them and could reproduce the product. Some boards of appeal concluded from this, that a product that cannot be reworked - such as a plastic with a complex manufacturing process - does not belong to the state of the art at all. That led to the absurd result, that a product that had been sold for a long time could later be patented.

The decision

• A publicly available product and its composition are part of the state of the art, if the professional does it can analyze – whether he can recreate it, no longer plays a role.
• G 1/92 was partially abandoned.
• difficulties, to be proven later, which revealed a product that is no longer available, are a question of evidence.

What does that mean for you??

Who sells a product, shows at trade fairs or issues samples, creates state-of-the-art technology – even against itself. Therefore, report your invention in front to every publication. Conversely, your own or third-party market products can now be used more easily, about disruptive patents Objection or in an action for annulment to attack. Therefore, document your market launches carefully (Date, Muster, bills).

Those: EPA, Große Beschwerdekammer, Decision v. 02.07.2025, G 1/23. General overview, no legal advice in individual cases. Stand: November 2026.