Core framework: Art. 83 EPC and the “skilled person”
Article 83 EPC requires that the application disclose the invention “sufficiently clear and complete for it to be carried out by a person skilled in the art.”
The “person skilled in the art” is the same notional yardstick used for inventive step and for sufficiency (same level of skill; can be a team if needed).
a) Same level of skill for inventive step and sufficiency — True
The EPO Guidelines explicitly state that the skilled person has the same level of skill when assessing inventive step and sufficient disclosure, and the case law confirms this approach.
b) Search-division finding on insufficiency cannot be contested in examination — False
The search opinion is preliminary. In examination, the applicant can argue against it and/or amend. Under Rule 70a(1) EPC, the EPO gives the applicant the opportunity (and often an invitation) to comment on deficiencies noted in the search opinion and to amend within the relevant period.
c) Skilled person may use common general knowledge — True
Sufficiency is not assessed in a vacuum: the skilled person reads the application with their common general knowledge and may use it to put the teaching into practice, as reflected in the Guidelines’ sufficiency discussion.
d) Condition for taking EP-Q into account: EP-Q must be public by EP-R publication at latest — True
Where the description refers to another document as part of the disclosure of the invention, the EPO first checks whether that external content is essential for carrying out the invention (Art. 83). If it is essential, the examining division requires that the essential matter be expressly incorporated because the patent specification must be self-contained regarding essential features.
Such incorporation (i.e. bringing in content from the referenced document) is only allowable under certain restrictions. In particular, if the reference document was not public on the filing date, it can only be considered if (among other things) it was made available to the public no later than the publication date of the application under Art. 93 (e.g. via file inspection after publication under Art. 128(4)).
Therefore, public availability of EP-Q by (at the latest) the publication date of EP-R is indeed a required condition for relying on EP-Q in this way.
Exam Tip:
For Art. 83 questions with a cited “co-pending” application:
- Start from self-contained disclosure: if the referenced document is essential, the EPO will require incorporation into the description.
- Remember: for non-public reference docs, one key condition is public availability by the application’s publication date (plus the other H-IV, 2.2.1 conditions).
- Treat a negative search opinion as arguable, not final: Rule 70a EPC exists for that.
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