The decision G 1/23 of the Enlarged Board of Appeal of the European Patent Office, dated 2 July 2025, essentially marks the end of the so-called “reproducibility privilege”, which for years had offered a fragile safety net to owners of complex products.

The decision clearly states that a product made available to the public is included in the state of the art under Art. 54(2) EPC by the mere fact of having been commercialised, irrespective of whether the skilled person can fully analyse its internal composition and reproduce it from scratch without undue burden.

G 1/23 requires a substantial and urgent reconfiguration of strategic patent counselling. The practice – sometimes tolerated – of allowing a short and controlled commercial phase for highly complex products before filing, relying on the impossibility of reproduction, has become completely unsustainable and carries a high risk of invalidity.
Public availability, even through simple offers or distribution of samples for commercial purposes, is now regarded as a form of disclosure that is fully enabling for all analysable features of the product.

As a consequence of this decision:

• any sale, distribution or commercial offer before filing may invalidate the claims. The absolute priority is filing before any disclosure or commercialisation;
• to protect distinctive features, the applicant must show an absolute technical impossibility to determine such features, not just difficulty or high costs;
• brochures, technical datasheets, performance data and other commercial information may now be treated as enabling disclosure.

Conclusions
On the one hand, this decision requires even more constructive cooperation between companies and patent attorneys; on the other, it limits those commercial workarounds that had been tolerated so far.

Companies, and in particular their sales and marketing departments, must always ensure that if a product – however complex – is considered in advance to be of competitive interest (industrial, financial and commercial), it must be protected by patents not only as a whole but also for its internal features, even when not immediately apparent.

Any prior disclosure will no longer avoid invalidity of a later patent unless it is impossible for the skilled person to understand the relevant technical features – which means a high risk of invalidity.

The patent attorney must explain this limitation in detail, no longer treating it as something that can be partially circumvented, and must guide the company towards earlier and more detailed patent protection, including a higher number of focused applications for what is considered the true result of its R&D.