OUP accepted manuscript

Abstract

According to Art 56 of the European Patent Convention (EPC) (and equivalent national provisions), an invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art. There are different tests for inventive step. The European Patent Office (EPO) uses the problem–solution approach, which comprises three main stages: The English Pozzoli test (Pozzoli v BDMO [2007] EWCA Civ 588; [2007] FSR 37) and the German test for inventive step (reviewed by Gröning, GRUR 2021, 206) do not necessarily require that the starting point be ‘closest’ (if they consider a single starting point at all), and they define the problem more broadly (Germany) or not at all (UK). Another difference is the approach to the statutory question of obviousness: English and German courts adhere more strictly to the wording of the statutes, focusing on the question whether the features distinguishing...