Plausibility, Sufficiency, and Inventive Step: Considerations for Formulation and Combination Patents in Europe

May 30, 2022 10:00am

Bert Oosting
Hogan Lovells

Sabrina Duschner
Head of Patent Litigation Strategy
Fresenius Kabi

Plausibility in the context of the inventive step and sufficiency requirements can be a contentious issue. To discern whether an invention is purely speculative, the Boards of Appeal of the EPO have developed the doctrine of “plausibility” in the context of sufficiency of disclosure as well as inventive step. On 11 October 2021, a Technical Board of Appeal referred questions to the Enlarged Board of Appeal of the EPO on plausibility and inventive step. As we await the Board of Appeal to issue the written decision, this session will consider in what situations post-published evidence can be considered to support the effect of the invention. Topics of discussion will include:

  • Considering the benefits of new formulations and combinations
  • Interpreting second medical use claims during enforcement proceedings
  • Striking the balance between securing an early filing date and overcoming the plausibility hurdle