Game-Changer Decision from the EPO: the “On-Sale” bar to patentability now exists in Europe

By Dr. Ilan Cohn

The Decision

On July 2, 2025, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) delivered a landmark decision that reshapes the applicability of prior sale as prior art for determining patentability.

It was previously thought that in Europe (and in many other countries, albeit unlike the US) prior sale of a product, where the product cannot be understood and reproduced from such disclosure, does not form part of the prior art. This notion stems from past rulings of the EBA.

This EBA decision concerns a patent (EP 2,626,911) that claims an encapsulating material for solar cells. The closest prior art was a commercial product. The matter was referred to the EBA by the Technical Board of Appeals.

The EBA ruled that a product made publicly available can qualify as prior art even if “its composition or internal structure could not be analysed and reproduced“. It was further noted that technical information about such a product may be prior art “irrespective of whether the skilled person could analyse and reproduce the product and its composition or internal structure” therefrom.

In other words, just being on the market may be enough to kill patentability of later-filed patent applications—regardless of whether the technical details were visible or accessible in the marketed product.

It was noted in the decision that the applicability of non-reproducible product as prior art may be different when assessing novelty or inventive step. While circumstances where such product could be regarded as prior art applicable to the question of novelty only or to both novelty and inventive step were exemplified in the decision, no general guidance was given to this question. Thus, it is still unclear when such a sale can be combined with other prior art to support an argument of obviousness. But the implications for novelty are immediate and substantial.

How Europe Now Aligns (and Differs) from the U.S.

This decision brings the European Patent Convention (EPC) closer in spirit to the U.S. “on-sale” novelty bar that is codified in Section 102 of U.S. patent law.

However, in the U.S., even confidential sales, or even an offer for sale, can be regarded as being “on sale” and therefore barring novelty of a later filed patent application, while such activities would most likely not bar novelty in Europe. Another important distinction is the 12-month grace period to file a patent after such disclosure, not available in Europe and in many other jurisdictions.

What This Means for Founders and Innovators

This decision has a simple takeaway: do not start selling or promoting a product before filing a patent application.

Bottom line? Protect your invention before it is disclosed to the world. The cost of delay could be your entire IP strategy.