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Case Law of the Boards of Appeal

 
 
6.1.1 General

The principles elucidated under Chapter II.C.3 and 4 above are also applicable to biological inventions. In particular, reference should be made to the case law laid down by the boards in T 281/86 (OJ 1989, 202), T 299/86 and T 409/91 (OJ 1994, 653). Issues related to completeness of disclosure are also discussed by the boards in context with inventive step (see e.g. T 1329/04, T 604/04, T 898/05, above Chapter I.D.4.1) and industrial applicability (see e.g. T 870/04, T 641/05, T 1452/06, above Chapter I.E). Whether the application discloses sufficient information making it plausible that the claimed polynucleotides or polypeptides have the alleged technical effect was considered a matter of inventive step (T 743/97; T 1329/04) or industrial applicability (T 1165/06, T 1452/06), whereas the relevant question under Art. 83 EPC 1973 was whether the description was sufficiently clear and complete for the skilled person to prepare the claimed products (T 743/97).

In T 449/90, the board considered that the requirements of Art. 83 EPC 1973 had been satisfied where the claimed degree of inactivation (“substantially') of the Aids virus could be demonstrated with sufficient certainty. Complete inactivation of the life-threatening virus - which the opponent had argued was necessary - was indeed highly desirable, but not an issue under Art. 83 EPC 1973, given the claim as worded.