A Plea for Less Hindsight in the Inventive Step Test.

This article provides a critical review of the case law of the European Patent Office (EPO) and some Member States regarding inventive step and is aimed, in particular, at judges at the Unified Patent Court (UPC) and practitioners before that court. The linchpin of the review is a discrepancy between, on the one hand, the legal principle of avoiding hindsight and, on the other, the EPO's belief that hindsight is a necessary element of an objective assessment of inventive step. Although this aspect must be separated from the question of how the original disclosure affects the assessment of inventive step, in particular the formulation of the problem (see G 2/21), there are nevertheless mutual dependencies. [ABSTRACT FROM AUTHOR]