Hindsight Knowledge

A use of inadmissible hindsight knowledge should also be avoided when evaluating an inventive step. An invention that appears obvious at first sight might in fact be associated with an inventive step. It is often possible to demonstrate that once a novel solution to a technical problem has been suggested, the solution may be contrived based on theoretical and hypothetical deliberations. However, such an ex post facto analysis is inadmissible when evaluating an inventive step.

One should always attempt to make an unbiased assessment of the inventive step associated with an invention and take into account all relevant arguments supporting an inventive step. As a general rule, there is an inventive step if the prior art leads the person skilled in the art away from the procedure proposed by the invention. This applies in particular when the skilled person would not even consider carrying out experiments to determine whether these were alternatives to the known way of overcoming a real or imagined technical obstacle.