[2] The Examining Divisions, Opposition Divisions, and Boards of Appeal of the EPO predominantly[notes 1] apply the "problem-and-solution approach" (also called "problem-solution approach") to assess and decide whether an invention involves an inventive step.
[11] The second step is to determine the objective technical problem, i.e., determining, in the light of the closest prior art, the technical problem, or task (German: Aufgabe),[12] which the claimed invention addresses and successfully solves.
In other words, the technical problem has to be formulated without including therein a part of a solution provided by the invention.
[15] Any alleged technical effect that would be brought about by the differences between the claimed invention and the closest prior art must be proved, otherwise the problem must be reformulated, as mentioned above.
[18][needs update] "Alleged advantages to which the patent proprietor/applicant merely refers, without offering sufficient evidence to support the comparison with the closest prior art, cannot be taken into consideration in determining the problem underlying the invention and therefore in assessing inventive step".
[19] A technical effect must be credibly obtained "throughout the entire range covered by the claims" for it to be relied upon in defining the objective technical problem, i.e. it must be credible that the problem is effectively solved over the whole claimed range.
The point is not whether the skilled person could have arrived at the invention by adapting or modifying the closest prior art, but whether he would have done so because the prior art would have incited him to do so in the hope of solving the objective technical problem or in expectation of some improvement or advantage.
This must have been the case for the skilled person before the filing or priority date valid for the claim under examination.
In such cases, the EPO generally applies the so-called "Comvik approach" (cf.
[31] The discovery of an unrecognised problem may under certain circumstances lead to patentable subject-matter even though the claimed solution "is retrospectively trivial and in itself obvious".