Insight
Upcoming decision on legal criterion for ‘novelty'
One of the most important requirements for obtaining a patent on a product in Europe is that the product is novel. That means that before the day on which the patent application was filed, the product was not yet available to the public in any way. An important point here is that something is only considered to have been made available to the public if it can be readily reproduced. Consequently, a drawing of a highly complicated molecule from 1870 that nobody could make or isolate at the time does not take away novelty of a later patent regarding that molecule.
Can you patent Coca Cola in Europe?
So, as an example, is Coca Cola ‘available to the public’ in the sense of it being able to take away the novelty of patent claims on “a sugar-containing fizzy drink”? This is actually not so easy to answer.
Is Coca Cola readily reproducible?
No, would some Boards of Appeal say, who take decisions in appeal procedures before the European Patent Office. Like the highly complicated molecule, you cannot make an exact copy of Coca Cola yourself from scratch. The recipe for Coca Cola is a well-kept secret and not all its components can be analyzed.
Yes, would other Boards say. You can at least make a sugar-containing fizzy drink, and you do not need to be able to make an exact copy of Coca Cola. Yet other Boards would reason that you can simply buy Coca Cola in the supermarket if you wish to have more of it.
Polymeric products
When Boards have reached conflicting conclusions, a Board may ask the Enlarged Board of Appeal how the law is to be interpreted. This happened last year in a case where the question was whether a commercially available polymer product had been made publicly available. Like Coca Cola, this polymeric product could be bought, but not exactly reproduced as its precise composition was not known.
The Enlarged Board has not reached a final answer on this issue, but recently they did provide their preliminary and non-binding opinion. Therein, the Enlarged Board suggests that commercial availability suffices to meet the reproducibility requirement. Other considerations would lead to absurd conclusions according to the Enlarged Boad. At the same time, the preliminary opinion indicates that non-analyzable components may not be publicly known and could still be claimed.
So, it seems that a broad claim covering Coca Cola would not be considered novel in Europe. On the contrary, a specific claim could still be novel if it pertains to a newly found component of Coca Cola that was hitherto “hidden”.
To be continued
Naturally, the Enlarged Board's final decision will also be important for other fields than food technology and polymer chemistry. These fields include for example cosmetics, plant protection products, the paper industry, paint, and many others.
The patent attorneys of V.O. eagerly await the decision on the matter, as this can have a large impact on what can still be patentable in Europe.
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