Yesterday, 12 March 2025, Dehns Partner Neil Campbell acted before the EPO Enlarged Board of Appeal – the highest EPO Board of Appeal, which provides guidance on key points of patent law under the European Patent Convention. The Enlarged Board decides on only one or two cases per year and this referral will potentially have the greatest impact on day-to-day patent practice of any EPO decision in recent years. We are therefore proud to have been a part of this momentous process from the start.

Neil has been acting for long term client, and the opponent in this case, Borealis AG, in EPO Enlarged Board of Appeal case G1/23. Following yesterday’s hearing, the Enlarged Board of Appeal will be issuing guidance on the prior art status in Europe of products which are commercially available but are not otherwise fully reproducible. The outcome could be similar to the “on sale bar” seen in patenting commercial products in the USA.

This point of law will potentially be relevant to many complex and specialty products where these can’t be fully analysed and reproduced from what is commercially available. Notably, the preliminary opinion of the Enlarged Board of Appeal and the submissions on behalf of the President of the EPO at yesterday’s hearing both align closely with Borealis’ position on this matter, demonstrating Dehns’ expert insight into complex legal issues at the highest level.

Yesterday’s hearing was the final step in deciding the key legal issues and a decision will be given in the upcoming weeks; this case, and the question of “what is prior art?” will have a significant and profound impact on the European patent system for many years to come.