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Case Law of the Boards of Appeal

 
 
5.3. Variants

If the only embodiment disclosed with concrete details in a patent is not disclosed in a manner sufficiently complete for the claimed invention to be carried out by a person skilled in the art on the date of priority with respect to the fundamental scope of said invention, it is of no significance with regard to the question of sufficient disclosure whether on the relevant date of filing a variant could have been carried out if the variant, although it is covered by the wording of the patent claim, does not fall within the fundamental scope of the claimed invention with regard to the teaching of the patent due to a lack of comparable technical success (T 1173/00, OJ 2004, 16).

The board went on to state that if an invention is insufficiently disclosed, it is of no relevance whether it was objectively impossible to provide the missing information on the date of priority. The decisive issue is whether the invention is disclosed in a manner sufficiently complete for it to be carried out by an average person skilled in the art on the date of priority, with knowledge of the patent and on the basis of that person’s common general knowledge.