In this decision, it seems that the Enlarged Board suggest that the fundamental test regarding inventive step and the assessment of post-filing evidence is to ask “what does the skilled person understand from the disclosure of the patent?” In my view, this should also be seen as the fundamental question for many different patent issues. That is, in determining novelty, inventive step, sufficiency, added matter, and infringement, it is necessary to ask the same question.
However, as the Enlarged Board acknowledge in their decision, this is a very abstract consideration, and so may not in isolation be a very helpful question to ask. Which (again, in my view) is why over time the patent office developed various more structured tests designed to help answer the apparently simple question.
So although this decision may be seen in some respects as stripping the question of plausibility back to basics, I suspect that in a few more years we will be applying new and different tests developed on top of this Enlarged Board decision.
To read additional comments on this topic from my colleague Jonathan Stafford, click here.