Inventive step in Europe and the UPC

January 22, 2018: Paul England: „Inventive step in Europe and the UPC"

Abstract
The author
Paul England PhD is a senior associate and senior professional support lawyer in the IP/IT group of Taylor Wessing, London, specializing in patents.

This article

• The essential question that must be asked by a national court in Europe, when deciding a dispute about inventive step is ‘is the invention obvious?’, as required by Article 56 EPC. However, the approaches taken by these courts to answering this question differ.

• The reason is that the question can be addressed in many ways, using different sub-tests and guiding factors. The proposed solution to resolving this inconsistency is the Unified Patent Court (UPC).
• This article examines the key approaches and sub-tests employed in the major centres of European patent litigation—the EPO, France, Germany, the Netherlands and the UK—when attempting to answer the question ‘is the invention obvious?’. It assesses what common ground there is between them that may guide the future UPC.