EBA finds that non-reproducible products still form part of the state of the art (G1/23)

What forms part of the "state of the art" is critical to any assessment of novelty and inventive step. In its answer to the referral in G1/23 the Enlarged Board of Appeal has provided clarity on how reproductivity effects prior use disclosures for the purposes of an patentability assessment. The central issue was whether a product's inherent non-reproducibility should exclude not