While the assessment of the inventive step by the UPC divisions seemed to rely more and more on principles of the problem solution approach of the EPO, the CD Paris has now opted for a more holistic approach in its decision Meril v Edwards on 20. October 2025 (UPC_CFI_189/2024).
Prior Case Law of the Central and the Local Divisions of the UPC
In a first decision – Sanofi v Amgen (UPC_CFI_1/2023, 16. July 2024) – the CD Munich tended to a more holistic approach (stating at the same time that the assessment of inventive step started from a realistic starting point of the prior art), following in several aspects the first thoughts of the CoA in Nanostring v 10x Genomics (UPC_CoA_335/2023, decision of 26. February 2026), which has set no guidelines concerning assessment of the inventive step.
In its decision NJOY v. Juul of 5. November 2024 (UPC_CFI_315/2023), the CD Paris applied several elements of the PSA, such as interpretation of the problem by comparing the invention and the claims with the prior art, having made clear however before in its decision Meril v. Edwards Life Sciences of 19. July 2024 (UPC_CFI_255/2023) that the PSA was not explicitly ruled in the EPC and therefore was not mandatory.
While the Divisions so far freely choose elements of the PSA and combining it with other evaluations, depending on the single case, the LD Munich took a rather clear view in favor of alignment with the case law of the EPO and enhancement of legal certainty on 4. April 2025 by stating (Meril v. Edwards Life Sciences, UPC_CFI_501/2023): For assessing whether an invention shall be considered obvious having regard to the state of the art, the problem solution approach developed by the European Patent Office shall be primarily applied as a tool to the extent feasible to enhance legal certainty and further align the jurisprudence of the Unified Patent Court with the jurisprudence of the European Patent Office and the Boards of Appeal.
The most recent UPC first instance decision of the CD Paris – clearly opting for a holistic approach in the assessment of „non-obviousness“
However, in its most recent decision of 20. October 2025 (UPC_CFI_189/2024), the CD Paris opted for a holistic approach in the assessment of the inventive step, after having identified the underlying problem in light of the patent`s specification.
The CD Paris further summarized the steps to be taken in assessing the inventive step, also referring to the UPC`s case law up till now, as follows:
- Identification of the objective problem underlying the claimed invention, which must be carried out in light of the patent`s specification (UPC_CoA 382/2024, decision of 20. April 2025), in an abstract and neutral way.
- Identification of the state of the art at the time of the claimed invention, represented by one or more realistic starting points (CD Munich, UCP_CFI_252/2023, decision of 17.October 2024), left to the initiative of the parties (the Court cannot acquire relevant prior art evidence based on own initiative); realistic starting points generally are these documents which disclose the main relevant features as the challenged patent and thus have constituted the basis for the developing of the inventive idea or which address the same or similar underlying problem (CD Paris, UPC_CFI_311/2023, decision of 21.January 2024).
- Assessment, whether it would have been obvious to the skilled person to arrive at the claimed solution in view of the underlying problem and the one or more starting points (CD Paris, UPC_CFI_307/2023, decision of 29. November 2024), taking a „holistic“ approach, not focusing on distinguishing features, but considering the invention as a whole.