Inventive Step in Europe:
    Alignment and
Divergence across the EPO, UPC, and German Patent and Trademark Office

At the EPO, inventive step is assessed using the well-established problem-solution approach. The examiner identifies the closest prior art, determines the objective technical problem in light of the distinguishing features and then considers whether the claimed solution would have been obvious in view of the prior art. This structured methodology aims to minimise hindsight and provides a high degree of consistency in examination and opposition proceedings.

The UPC has developed its own holistic approach. While the Court frequently refers to EPO case law—and has recently endorsed the COMVIK approach for computer-implemented inventions, in which non-technical features shift from the solution side to the problem statement and only the technical implementation is still examined for inventiveness. It has made clear that it is not bound to apply the problem-solution approach.

Instead, the UPC considers whether one or more realistic starting points would have led the skilled person to the claimed invention. It assesses the invention as a whole and asks whether the prior art provides sufficient motivation or "pointers" towards the claimed solution. Like the EPO, it applies the established "would, not could" principle: the decisive question is whether the skilled person would have arrived at the invention, not merely whether they could have done so.

The DPMA and the German courts also assess whether the invention would have been obvious, but generally apply a less formal analytical framework. German practice places greater emphasis on the technical contribution over the prior art and readily considers several plausible starting points. The analysis is strongly influenced by the case law of the German Federal Court of Justice.

The underlying legal standard remains broadly consistent across Europe, but differences in reasoning may influence the outcome of individual cases. Patent applications that clearly explain the technical contribution and include well-considered fallback positions are generally better placed to withstand examination and enforcement before all three authorities.

As UPC jurisprudence continues to evolve, its interaction with EPO practice and German case law will remain an important consideration for businesses seeking robust and enforceable patent protection in Europe.