Carina SchröderDie Beurteilung der erfinderischen Tätigkeit aus europäischer und nationaler Sicht

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Patent protection is granted for inventions on all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. These requirements apply according to European (Art. 52 para 1 EPC) as well as German law (Sec. 1 para 1 Patent Act).

Both legal systems stipulate that an invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art (see Sec. 4 Patent Act and Art. 56 EPC respectively). The requirement of inventive step occupies a central position within the assessment of patentability, but nevertheless, it leaves room for interpretation. It only demands that the assessment has to be conducted from the perspective of a person skilled in the art.

After a short introduction, the present thesis is dedicated to the assessment of inventive step carried out by the European Patent Office. The author examines the problem-solution-approach that is applied on European level with the goal to ensure an objective assessment and to avoid a so called ex-post-facto-analysis that can lead to inappropriate results. The author checks the particular aspects of the problem-solution-approach as to their compatibility with the need to conduct this assessment from the perspective of an ordinary person skilled in the art. Afterwards, she compares the found results with the national approach characterised by the judicial practice of the Federal Supreme Court and the Federal Patent Court.

Ultimately, she concludes that the problem-solution-approach is highly formalistic, but when it comes to its concrete implementation, these formalistic requirements are often disregarded. In contrast, the national practice appears to be more oriented towards the view of an ordinary person skilled in the art.

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