Problem-solution Approach
The Examining Divisions, the Opposition Divisions, and the Boards of Appeal of the EPO predominantly apply the "problem-solution approach" in order to assess and decide whether an invention involves an inventive step. The problem-solution approach was selected mostly for historical and pragmatic reasons. Indeed, when setting up the European Patent Convention, the approaches to assess inventivity in national countries differed substantially from each other, and it was felt that a unique, consistent approach to inventity was needed.
The problem-solution approach essentially consists in three steps:
- identifying the closest prior art, i.e. the most relevant piece of prior art, and determining the difference(s) between the invention and the closest prior art;
- determining the technical effect brought about by the difference(s), and that defines the objective technical problem (namely, in the view of the closest prior art, the technical problem which the claimed invention addresses and successfully solves); and
- examining whether or not the claimed solution to the objective technical problem is obvious for the skilled person in view of the state of the art in general.
Read more about this topic: Inventive Step Under The European Patent Convention
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