Inventive step under the European Patent Convention

Under the European Patent Convention (EPC), European patents shall be granted for inventions which inter alia involve an inventive step. The central legal provision explaining what this means, i.e. the central legal provision relating to the inventive step under the EPC, is Article 56 EPC. It provides that an invention, having regard to the state of the art, must not be obvious to a person skilled in the art. The Boards of Appeal of the European Patent Office (EPO) have developed an approach, called the "problem-and-solution approach", to assess whether an invention involves an inventive step.

The Examining Divisions, the Opposition Divisions, and the Boards of Appeal of the EPO predominantly apply the "problem-and-solution approach" (also called "problem-solution approach") in order to assess and decide whether an invention involves an inventive step. The problem-solution approach was "selected" mostly for historical and pragmatic reasons. Indeed, when setting up the European Patent Convention, the approaches to assess inventivity in national countries differed substantially from each other, and it was felt that a unique, consistent approach to inventity was needed. The "problem-solution approach" was reportedly invented by Hungarian former Board of Appeal member G. Szabó.

The problem-solution approach essentially consists in three steps:

This first step of the problem-solution approach consists in selecting the most promising starting point from which a skilled person could have arrived at the claimed invention. In other words, the most promising springboard towards the invention is to be determined. This public piece of prior art is called the closest prior art, which is supposed to be "nearer the invention than any other cited piece of prior art." According to Board of Appeal member Graham Ashley, the expression "appropriate starting point" is probably more relevant since the inventive assessment could in fact be started from more than one piece of prior art. Indeed, there is no requirement to select a unique piece of prior art as starting point and stick with that piece of prior art. The problem-solution approach may need to be conducted from different starting points.

...
Wikipedia