A board of appeal of the EPO held that for the problem-solution approach to inventive step the requirement of the same “purpose or effect” in the criteria for selecting the closest prior art for a claim refers to the purpose or effect of the claimed subject-matter as a whole, not just of its distinguishing feature(s). Teaching away does not exclude use of a publication as closest prior art. Nor is a teaching towards the distinguishing feature(s) necessary to qualify as the closest prior art. The problem has to be determined after selection of the closest prior art.
Case date: 20 January 2021
Case number: ECLI:EP:BA:2021:T114815.20210120
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.