Insecticide compositions/Sumitomo (EPA)

EPA, Decision of 23 March 2023 - G 0002/21 -


Insecticide compositions

Relevant legal provisions:

EPC Art. 52(1), 54, 56, 83, 100, 101(2), 106(1), 112(1)(a), 112(2), 113(1), 117, 125

EPC R. 4, 117-124, 150

RPEBA Art. 9, 10, 13, 14(2)

RPBA 2020 Art. 22

Law of the Contracting States:


Code of Civil Procedure (Zivilprozessordnung), Art. 157 Federal Act on the Federal Patent Court - Patent Court Act (Bundesgesetz über das Bundespatentgericht – Patentgerichtsgesetz), Art. 27


Patent Act (Patentgesetz), § 93(1) Code of Civil Procedure (Zivilprozessordnung), § 286

The Netherlands:

Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), Art. 152(2)


I. Evidence submitted by a patent applicant or proprietor to prove a technical effect relied upon for acknowledgement of inventive step of the claimed subject-matter may not be disregarded solely on the ground that such evidence, on which the effect rests, had not been public before the filing date of the patent in suit and was filed after that date.

II. A patent applicant or proprietor may rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention.


Admissibility of referrals – yes

Re-phrasing of the referred questions – no

Extending the scope of the referred questions - no

Principle of free evaluation of evidence – exception to the principle required – no

Inventive step - reliance on technical effect – yes, based on the application as originally filed

Decisions cited:

G 0003/97, G 0004/97, G 0002/08, G 0002/10, G 0001/12, G 0001/13, G 0003/14, G 0001/19, G 0003/19, G 0001/21, T 0390/88, T 0482/89, T 0838/92, T 0939/92, T 0798/93, T 0543/95, T 0558/95, T 0142/97, T 0592/98, T 0278/00, T 0329/02, T 0609/02, T 0893/02, T 0972/02, T 1110/03, T 0474/04, T 1329/04, T 0578/06, T 1599/06, T 0536/07, T 1437/07, T 1642/07, T 0545/08, T 1545/08, T 0108/09, T 1797/09, T 0266/10, T 0415/11, T 0754/11, T 1677/11, T 1791/11, T 0125/12, T 0419/12, T 0760/12, T 0863/12, T 2294/12, T 0235/13, T 0895/13, T 1045/13, T 1285/13, T 2059/13, T 2348/13, T 2371/13, T 0787/14, T 0887/14, T 1363/14, T 0321/15, T 0919/15, T 2097/15, T 2238/15, T 0179/16, T 0184/16, T 0488/16, T 0517/16, T 0578/16, T 0978/16, T 1499/16, T 2730/16, T 0229/17, T 1322/17, T 1680/17, T 2200/17, T 0031/18, T 0122/18, T 0334/18, T 0377/18, T 0391/18, T 1306/18, T 1442/18, T 2923/18, T 1099/19, T 1343/19, T 1571/19, T 2029/19, T 2963/19, T 3109/19, T 2015/20

EPA, Decision of 23 March 2023 – G 0002/21

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Comment C&F:

In its decision G 2/21, the Enlarged Board of Appeal of the European Patent Office addressed the question of whether post-published evidence may be used to prove a technical effect relied upon for acknowledgement of inventive step of the claimed subject-matter. The Enlarged Board of Appeal held that it is in principle admissible to use post-published evidence for this purpose. The requirement for the recognition of such evidence is that the skilled person would (plausibly) derive the technical effect from the application originally filed.

The Enlarged Board of Appeal upholding the possibility to file post-published evidence is good news for practitioners. However, a plausible justification for the existence of a technical effect should be present in the application originally filed. For the fields of chemistry, biotechnology, and pharmacy in particular, this means that initial experimental data at least should be included with the application from the beginning if it is to support a technical effect. Filing an application without experimental data seems risky in any case – after all, it is up to the patent applicant to prove the existence of a claimed but disputed technical effect.

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Our commentary on the above judgment serves the purpose of making it easily accessible. Simplifications and incompleteness are due to this purpose. For a complete understanding, please refer to the original German version of the publication of the judgment.