<OrderedList><ListItem><ItemNumber>1.</ItemNumber><ItemContent>The plausibility of the technical effect must be assessed with reference to the content of the patent application (which, here, was extraordinarily broad, encompassing millions of compounds).</ItemContent></ListItem><ListItem><ItemNumber>2.</ItemNumber><ItemContent>Although the requirement that the intended technical effect must be plausible in the light of the technical teaching of the patent is not, strictly speaking, a legal requirement for patentability, the assessment of this requirement of inventive step inherently entails that the technical effect asserted for the invention must follow from its technical teaching.</ItemContent></ListItem><ListItem><ItemNumber>3.</ItemNumber><ItemContent>Inventive step must be assessed as at the effective date of the patent and on the basis of the information contained in the application, together with the common general knowledge that the skilled person would have had at that time. In this examination, when determining the technical problem, it must, inter alia, be possible to assess the technical effect sought by the claimed invention in comparison with the closest prior art.</ItemContent></ListItem><ListItem><ItemNumber>4.</ItemNumber><ItemContent>As opposed to the doctrine of <Emphasis Type="BoldItalic">ab initio</Emphasis> plausibility, <Emphasis Type="BoldItalic">ab initio</Emphasis> implausibility, according to which, on the basis on the information contained in the patent application or the common general knowledge, the skilled person at the filing date would have had no reason to consider the effect implausible, does not preclude the need to examine whether the particular effect sought is encompassed by the technical teaching and embodied in the same, originally disclosed invention.</ItemContent></ListItem><ListItem><ItemNumber>5.</ItemNumber><ItemContent>One of the prerequisites of the rules set out in the intermediate conclusion of para. 77 of decision G 2/21 from the EPO Boards of Appeal is that, in the absence of experimental data in the application as filed, it would not be credible to a person skilled in the art that the claimed therapeutic effect had been achieved. Thus, it may suffice to provide a theoretical or mechanistic explanation or to rely on common general knowledge.</ItemContent></ListItem><ListItem><ItemNumber>6.</ItemNumber><ItemContent>Said conclusion reached in para. 77 relates to second medical-use claims and does not necessarily extent to first medical-use claims.</ItemContent></ListItem></OrderedList>

“Plausibility Test”

期刊论文
发表日期：

2026年2月1日

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摘要

The plausibility of the technical effect must be assessed with reference to the content of the patent application (which, here, was extraordinarily broad, encompassing millions of compounds).

Although the requirement that the intended technical effect must be plausible in the light of the technical teaching of the patent is not, strictly speaking, a legal requirement for patentability, the assessment of this requirement of inventive step inherently entails that the technical effect asserted for the invention must follow from its technical teaching.

Inventive step must be assessed as at the effective date of the patent and on the basis of the information contained in the application, together with the common general knowledge that the skilled person would have had at that time. In this examination, when determining the technical problem, it must, inter alia, be possible to assess the technical effect sought by the claimed invention in comparison with the closest prior art.

As opposed to the doctrine of ab initio plausibility, ab initio implausibility, according to which, on the basis on the information contained in the patent application or the common general knowledge, the skilled person at the filing date would have had no reason to consider the effect implausible, does not preclude the need to examine whether the particular effect sought is encompassed by the technical teaching and embodied in the same, originally disclosed invention.

One of the prerequisites of the rules set out in the intermediate conclusion of para. 77 of decision G 2/21 from the EPO Boards of Appeal is that, in the absence of experimental data in the application as filed, it would not be credible to a person skilled in the art that the claimed therapeutic effect had been achieved. Thus, it may suffice to provide a theoretical or mechanistic explanation or to rely on common general knowledge.

Said conclusion reached in para. 77 relates to second medical-use claims and does not necessarily extent to first medical-use claims.