How Europe tests novelty and amendments
The European Patent Office applies an absolute novelty test and a strict amendment rule, so a European filing has to be planned from the first draft.
Lesson 7 of 12 · 4 min
If Europe matters to your business, it has to matter on the day you first write your application. The European Patent Office (EPO) is unforgiving in three ways.
Novelty is absolute
In Europe, the state of the art is everything made available to the public by any means before filing (EPC Art. 54). There is no general grace period like the US one. The European Patent Convention (EPC) excuses a disclosure only in narrow cases: evident abuse or a recognized exhibition, within 6 months (EPC Art. 55). So a talk or a sale that a US application could survive may end your European rights.
Inventive step follows a structure
The EPO uses the problem-solution approach. In plain terms, it starts from the closest prior art, works out the technical problem your invention solves, and asks whether a skilled person would have arrived at your solution. The "could-would" reasoning means it is not enough that a skilled person could have done so. The question is whether they would have (Guidelines G-VII 5).
In our judgment, this helps you draft. An application that states a technical problem and a technical effect gives the examiner a reason to see a step forward.
You cannot add matter
Amendments may not extend beyond the application as filed (EPC Art. 123). The test is whether the new wording is "directly and unambiguously" derivable from what you filed (Guidelines H-IV 2.2). In practice, this means a fallback position you did not write down at the start may not be available later. In our judgment, it pays to describe your fallback positions and their combinations in the original text.
Timing after search
You may request examination up to 6 months after the search report is mentioned (EPC Rule 70). That gives you a natural pause to read the search result before you spend more.
Grant is also not the end. Anyone may oppose a European patent within 9 months of grant (EPC Art. 99). An opposition is a central attack at the EPO itself, so plan for it when you decide how much to invest in a European filing.
Timeless wisdom
The state of the art is everything made available to the public by any means before filing (EPC Art. 54). Inventive step uses the problem-solution approach with "could-would" reasoning (Guidelines G-VII 5). Amendments may not extend beyond the application as filed (EPC Art. 123), and the test is whether the matter is "directly and unambiguously" derivable (Guidelines H-IV 2.2). Anyone may oppose within 9 months of grant (EPC Art. 99).
What's current
As of September 3, 2026
Three decisions of the EPO's Enlarged Board of Appeal changed the teaching. G 1/24 (June 18, 2025): the description and drawings "shall always be consulted" to interpret claims (decision). G 1/23 (July 2, 2025): a marketed product is prior art even if it cannot be analyzed and reproduced (OJ 2025, A68). G 1/25 (Sept. 3, 2026): the description must be adapted only if an amendment introduces an inconsistency and "because of that inconsistency" listed EPC requirements fail (decision).
Fees from April 1, 2026, in EUR: filing online 135, search 1,595, designation 720, examination 2,010, grant 1,135, third-year renewal 725, opposition 880 (OJ 2026, A2). By arithmetic, official fees to grant are about EUR 5,595, before claims, pages, renewals, attorneys and translation.
Digital filing becomes mandatory on April 1, 2027 (EPO news).
Key takeaways
- Europe has no general grace period, so disclose only after filing.
- Inventive step follows a structured test built on a technical problem.
- You cannot add matter later, so write fallback positions into the original text.
- Anyone may oppose a European patent within 9 months of grant.
Check your understanding
Sources
- EPC Art. 54, novelty
- EPC Art. 55, non-prejudicial disclosures
- EPO Guidelines G-VII 5, problem-solution approach
- EPC Art. 123, amendments
- EPO Guidelines H-IV 2.2, added matter
- EPC Rule 70, request for examination
- EPC Art. 99, opposition
- G 1/24, Enlarged Board decision
- G 1/23, Official Journal 2025, A68
- G 1/25, Enlarged Board decision
- EPO fees, Official Journal 2026, A2
- EPO news on mandatory digital filing
The Academy is general education, not legal advice, and reading it doesn't create an attorney-client relationship. Patent law and fees change, so check the linked sources and have a registered patent attorney or agent review your situation before you file. Obsidyan sells patent software, including AI drafting tools, so weigh what these lessons say about AI tools with that in mind.