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The Enlarged Board today issued its decision in case G 1/23. It concluded that a product put on the market cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be reproduced by the skilled person.

The headnotes read:

Headnote:
I. A product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.

II. Technical information about such a product which was made available to the public before the filing date forms part of the state of the art within the meaning of Article 54(2) EPC, irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure before that date.

The decision (corrected verion) can be read here.