4.1. Determination of the objective technical problem in general
4.1.1 Objective criteria
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
According to the problem and solution approach, objective criteria must be used to determine the technical problem (see e.g. T 1/80, OJ 1981, 206; T 24/81, OJ 1983, 133; T 39/93, OJ 1997, 134), i.e. the problem which can be seen to have been actually solved in the light of the closest prior art which may be different from the prior art which was at the disposal of the inventor (T 576/95, T 420/14, T 1148/15, T 1491/20). This requires the assessment of the technical effect vis-à-vis the closest state of the art (T 148/05, T 1422/12, T 141/16).
A comparison of the problem indicated in the application with that indicated in a prior document must avoid an unduly abstract approach far removed from the practical thinking of the person skilled in the art (T 5/81, OJ 1982, 249; T 150/89; T 417/94; T 177/98; T 263/99; T 1093/04).
The definition of artificial and technically unrealistic problems is to be avoided (see T 495/91, T 741/91, T 334/92, T 708/96, T 257/98, T 1967/08, T 98/16).
For the purpose of the problem and solution approach, the problem must be a technical one that a skilled person in the particular technical field might be asked to solve at the priority date. (see e.g. G 1/19, OJ 2021, A77; T 385/89; T 641/00, OJ 2003, 352; T 154/04, OJ 2008, 46). In identifying the problem it is not permissible to draw on knowledge acquired only after the date of filing or priority (T 268/89, OJ 1994, 50; T 365/89). However, see in this chapter I.D.4.3.3 "Post-published evidence and reliance on a purported technical effect for inventive step ("plausibility")".