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Case Law of the Boards of Appeal

 
 
9.18.7 Choice of one of several obvious solutions

A merely arbitrary choice from a host of possible solutions cannot be considered inventive (T 939/92, OJ 1996, 309; T 739/08). In T 400/98 the board stated that applying one of the possible solutions which were available to the skilled person requires no particular skills and hence does not involve an inventive step (T 107/02).

In T 588/99 the board stated that in the particular situation where a document explicitly defines any compound having a certain activity as a suitable component of a detergent composition, and urges the skilled person to look for such compounds in publications of other technical fields such as biochemistry and medicine, it requires no inventive activity to solve the technical problem of providing an alternative to the compositions disclosed in such prior art by replacing the explicitly specified compounds having the given activity with any other such compounds which may be found by exploring the other technical fields.

In T 190/03 of 29 March 2006 the board stated that in connection with the obviousness of a solution chosen from various possibilities, it is sufficient that the one chosen is obvious and not necessarily relevant that there are several other possible solutions. The board referred to T 939/92 (OJ 1996, 309) where it was stated that (albeit in the field of chemistry) an arbitrary selection of a solution from a number of possibilities in the absence of a hint to do so is not inventive if not justified by a hitherto unknown technical effect that distinguishes the claimed solution from the other solutions. In the case before it, the board could not see any unknown or surprising effects, but only immediately predictable ones.

In T 892/08 the board referred to the established case law whereby, when the technical problem is simply that of providing a further composition of matter or a further method, i.e. an alternative to the prior art, any feature or combination of features already conventional for that sort of composition of matter or method represented an equally suggested or obvious solution to the posed problem. The boards have repeatedly established that the simple act of arbitrarily selecting one among equally obvious alternative variations is devoid of any inventive character (see also T 311/95).