Breaking news: plausibility referral

This blog has been silent for a number of weeks now. Hopefully, regular posting will resume soon.

In the meantime, here is a very brief post today, to make all readers (on the beach or not) aware of a new referral to the Enlarged Board of Appeal, on a topic which enthralls the pharma patent crowd – and beyond – in every season, namely: plausibility.

The case of interest is T 116/18, pitching Syngenta Ltd. as the opponent against Sumitomo Chemical Company, Ltd. as the patentee. This case actually relates to an insecticide composition and not a pharmaceutical one.

Oral proceedings took place on July 22, 2021, and based on the minutes issued on July 30, 2021, it appears that the Board intends to submit three questions to the Enlarged Board, which are provisionally phrased as follows:

If for acknowledgement of inventive step the patent proprietor relies on a technical effect and has submitted data or other evidence to proof such effect, such data or other evidence having been generated only after the priority or filing date of the patent (post-published data):

1. Should an exception to the principle of free evaluation of evidence (see e.g. G 1/21 reasons 31) be accepted in that the post-published data must be disregarded on the ground that the proof of the effect rests exclusively on such post-published data?

2. If the answer is yes (post published data must be disregarded if the proof of the effect rests exclusively on these data): can post-published data be taken into consideration if based on the information in the patent application the skilled person at the relevant date would have considered the effect plausible (ab initio plausibility)?

3. If the answer to the first question is yes (post published data must be disregarded if the proof of the effect rests exclusively on these data): can post-published data be taken into consideration if based on the information in the patent application the skilled person at the relevant date would have seen no reasons to consider the effect implausible (ab initio implausibility)?

Let’s wait for the written referral decision and the final form of the questions, but it can already be guessed that the stakes will be very high for pharmaceutical companies and the so-called “chemistry” segment at large.

Thank you to my colleague Horst Vissel for first drawing my attention to this referral on LinkedIn. I seldom do breaking news, but it is the heart of the summer, everything is probably somewhat quieter on the big blogs, so it was now or never!