Decision T 2554/22 is no game-changer at the EPO, but it is a neat illustration of a “quiet” shift already under way at the Boards of Appeal – at least in my opinion. The panel makes it plain that inventive-step analysis need not revolve around locating the one “closest” prior art. What matters is whether the citation relied on is a realistic starting point. Several such “close” documents may coexist, and obviousness can be tested from each of them. The language echoes the Munich Local Division’s recent remarks in UPC_CFI_501/2023 where the LD Munich firmly endorsed the application of the problem solution approach in UPC proceedings.
With respect to inventive step, the Board did not deny that in case of several "close" prior art documents a skilled person may have used any of them as a starting point and it may be necessary to assess inventive step from multiple angles. However, in the present case a skilled person addressing the problem of the patent would not have started from D1, but from D7. In this sense, in the present situation D1 was not considered to be a "realistic starting point".
Only a few weeks ago the Munich Local Division, in its decision of 4 April 2025 (UPC_CFI_501/2023) – analysed in one of our previous posts (blog no. 72) – made headlines by stating that the UPC will “primarily” adopt the EPO’s problem-solution approach. The Board of Appeal in T 2554/22 now delivers much the same message from the EPO side of the fence. By accepting several equally plausible starting documents and insisting that obviousness can be shown from each of them, the Board underlines that the PSA is a pragmatic tool, not a contest for finding the closest prior art.
