The appeal in T 1228/01
lay from the examining division's decision to refuse the European patent application entitled "Method of preparation and use for zona pellucida antigens and antibodies for sterilization and contraception" because it contained subject-matter which extended beyond the content of the application as filed, contrary to Art. 123(2) EPC 1973
. The appellants inferred that the reference to a deposited phage in a claim, whose correct deposit was mentioned in the application as originally filed, was an implicit disclosure of a part of a nucleotide sequence contained in the phage, although the sequence was not disclosed per se. Reference was made to T 301/87
, whose conclusions also applied here and in which it had been decided that if an entity itself was disclosed to the skilled person, this did not necessarily mean that a component part was also disclosed for the purpose of priority if this could not be envisaged directly and unambiguously as such and required considerable investigation to reveal its identity. Thus in T 1228/01
the board stated that the disclosure in the application as originally filed of the deposition of the recombinant bacteriophage Lgt11-P3 was not considered to be a basis within the requirements of Art. 123(2) EPC 1973
for the disclosure of a DNA sequence designated as "the P3 coding sequence" which was allegedly contained in that bacteriophage, but which as such was not disclosed in the application as originally filed.