The long awaited G1/23 issued today with significant implications for how the prior art effect of products placed on the market will be considered by the EPO in the future. The Enlarged Board determined that the reproducibility of a product placed on the market must be understood in a broader sense, namely as the ability of the skilled person to obtain and possess the physical product. The reproducibility requirement is inherently fulfilled by a product put on the market (para 0073 of the decision). Moreover, the chemical composition of a product is part of the state of the art when the product as such is available to the public and can be analysed by the skilled person, irrespective of whether or not particular reasons can be identified for analysing the composition.

The EPO have confirmed therefore that a product put on the market before the filing date of a European patent application cannot be excluded from the state of the art for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.

Neil Campbell of Dehns represented the Opponent in this seminal decision and the decision reflects the position Neil and his client put forward to the Enlarged Board.