A Plea for Less Hindsight in the Inventive Step Test.

This article critically examines the case law of the European Patent Office (EPO) and various European Member States concerning the inventive step requirement in patent law, with a focus on guiding judges and practitioners at the Unified Patent Court (UPC). It highlights a key tension between the legal principle of avoiding hindsight in assessing inventive step and the EPO's reliance on hindsight—particularly through the problem-solution approach, which involves selecting the closest prior art and formulating an objective technical problem based on knowledge of the invention. The article compares different national approaches, noting that German and UK courts apply inventive step tests that seek to limit hindsight more strictly than the EPO, and that plausibility plays varying roles across jurisdictions. It concludes that while the UPC should consider the EPO's problem-solution approach, it is not bound by EPO case law and has the opportunity to develop an independent, more consistent method for assessing inventive step that better mitigates hindsight bias.