4.2. Formulation of the objective technical problem

The objective technical problem determines the angle of vision that the skilled person will adopt when considering the remaining prior art in the third step of the problem-and-solution approach. For a fair and objective assessment of inventive step, it is therefore important that the objective technical problem is formulated neither too narrowly nor too broadly. In most cases, the objective technical problem can be formulated as how to achieve the technical effect. It is usually a problem the skilled person is familiar with because it relates to known drawbacks of the prior art in the technical field of the invention (T 1448/15).

The technical problem may be formulated using an aim which is to be achieved in a non-technical field, and which is thus not part of the technical contribution provided by the invention to the prior art (see e.g. G 1/19, OJ 2021, A77; T 641/00, OJ 2003, 352; T 154/04, OJ 2008, 46). See also in this chapter I.D.9.1. "Assessment of inventive step in the case of mixed-type inventions".

In identifying the problem it is not permissible to draw on knowledge acquired only after the date of filing or priority. According to T 268/89 (OJ 1994, 50) the non-effectiveness of a prior art apparatus or method recognised or alleged only after the priority or filing date could not be drawn on in formulating the problem, particularly where that problem was adduced in support of inventive step in a "problem invention" (cf. T 2/83, OJ 1984, 265).

It must be examined whether the problem defined by reference to the closest prior art has indeed been solved the claimed invention. If not, the problem must be reformulated. See also in this chapter I.D.4.4 "Reformulation of the technical problem".

See also Guidelines G‑VII, 5.2 – March 2022 version.