Decision G 1/23
With G 1/23 the Enlarged Board of Appeal of the EPO has settled an important question: publicly available products form part of the state of the art even where they could not be fully analysed or reproduced. Some of the consequences for practice:
The essentials
Decision G 1/23 of 2 July 2025 clarifies how the publication of complex products is treated under European patent law. The Enlarged Board of Appeal has held that a publicly available product belongs to the state of the art, irrespective of whether third parties can retrace its exact composition or manufacture:
I. A product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date.
II. Technical information about such a product which was made available to the public before the filing date forms part of the state of the art within the meaning of Article 54(2) EPC, irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure before that date.
(Headnote of G 1/23; the language of the proceedings was English. For the decision see: decision text)
For a long time it was disputed whether a product belongs to the state of the art when it is publicly available but its internal structure cannot readily be analysed or reproduced.
With G 1/23 the Enlarged Board of Appeal gives a clear answer: the product does belong to the state of the art, even where it cannot be fully reproduced or analysed. Repeatedly obtaining an unchanged product from the market can accordingly be regarded as a form of “reproduction”. What is decisive is therefore public availability, no longer technical reproducibility.
What changes in practice?
The decision will have noticeable effects on several areas of patent practice.
In order not to jeopardise later patent protection for a product, companies should be even more careful when testing or demonstrating products in public. Prototypes that can only be analysed incompletely may also destroy novelty.
The decision also matters for opposition proceedings, because it opens up new lines of argument.
New challenges for modern technologies
It may be of particular relevance for modern fields of technology such as software and artificial intelligence. It is precisely here that applicants have so far felt safe when the source code was not disclosed or reverse engineering was not possible.
G 1/23 does not refer to these fields of technology expressly, but the decision should not be left out of strategic considerations. Even for binary code or for programs accessible only through APIs, applying the new decision could become problematic if these then count as state of the art although the source code is not disclosed.
Far-reaching consequences are also conceivable for AI systems. Proprietary AI models that are accessible as a black box for demonstration purposes or through cloud services could become relevant under patent law, irrespective of whether their architecture or training methods can be inspected.
This raises new strategic considerations for companies about the timing of product releases and patent applications.
G 1/23 simplifies the legal position considerably and brings more legal certainty to the assessment of complex products. At the same time it brings both new strategic options and heightened duties of care.
Update
On Thursday, 30 October 2025, from 13:00 to 17:00, the online seminar “YIN und YANG des Patentrechts” takes place, in which patent attorney Dr Anna Katharina Heide of ambidexIP and patent attorney Sebastian Goebel of our firm, Bösherz Goebel Patentanwälte, will discuss G 1/23 among other decisions relating to AI and biotech. True to the motto “Was Biotech und KI voneinander lernen können” (What biotech and AI can learn from each other). More information here: More information here!