Image: Wesley Tingey, Unsplash
The Austrian chemical company Borealis AG can continue to produce Poe material for the solar industry, after a statement of 2 July by the European Patent Office.
The Japanese chemical producer Mitsui Chemicals, who contains a patent for the POE material “Engage 8400”, has submitted the matter. Borealis argued that the polymer used in the material was already available on the market before Mitsui Chemicals submitted its patent application, making the product “State of the Art” under European patent law and therefore not patentable.
Mitsui chemicals argued that the exact chemical structure of the material could not be reproduced by a trained expert without excessive effort, an argument referred to in the patent law as the “unnecessary burden by a competent person”.
The European Patent Office has considered whether a product can lose its status “State of the Art” if reproducibility requires considerable efforts. The office ruled that it is not possible. Every product that is brought to the market before a patent application qualifies as a ‘state of the art’, even if the exact chemical structure is not immediately known. The office also stated that public technical documentation, such as brochures, is eligible as technology.
The statement rejected the argument of Mitsui and Koos for Borealis.
The decision can have a broader implications for European patent law, in particular about whether the convenience of reproducibility is required for the classification of the state of the technology.
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