An inventor that comes up with a process, device or product which solves a technical problem may believe that it is so simple and obvious that it cannot be patentable. Once the solution to a problem is known, it is tempting to think that it was easy or straightforward to imagine. This is called "hindsight".

However, this is not how the presence of an inventive step is assessed at the European Patent Office (EPO). Instead, it recognises that while in hindsight an invention may seem obvious, it may not have been before the solution was known, or, as the guidelines for Examination put it, "an invention which at first sight appears obvious might in fact involve an inventive step". (GD G-VII.8)

The EPO uses the "problem-solution" approach, which is designed to avoid using hindsight and enables examiners and practitioners to determine whether an invention involves an inventive step. This approach comprises, among other things, the definition of an objective technical problem to be solved in view of the prior art.

Assessing the inventive step is not easy. However, an invention is not rendered obvious merely because it could have been conceivable. The following questions may help to determine whether an invention is inventive:

  • Is there a prior art document pointing towards the solution (provided by the invention) to the objective technical problem?
  • Would a person skilled in the art be prompted to modify the prior art in order to provide the invention?

If the answer to these questions is "no", the invention probably involves an inventive step.

For further information on this topic please contact Roland Duchêne at GEVERS by telephone (+32 2 715 3711) or email ([email protected]). The GEVERS website can be accessed at