Zusammenfassung von Article 083 EPC für die Entscheidung T0137/24 vom 22.01.2026

See also abstract under Article 123(2) EPC. In T 137/24 the appellant (opponent 2) asserted that the claims of the patent as granted encompassed non-working embodiments because many polypeptide sequences falling under the definition in the claim did not have any enzymatic activity, as evident from Example 5 of the patent in which a number of truncated polypeptides had been tested unsuccessfully. A research project was hence required to test and identify functional polypeptides. Since the patent did not provide any guidance on how the sequences could be changed without losing enzymatic activity, it was an undue burden to find functional polypeptides. The board observed that, firstly, since the claims required that the genetically modified yeast cells be suitable for producing a cannabinoid or a cannabinoid derivative and the recited polypeptides were also functionally defined by reference to their enzymatic activity, polypeptides without this enzymatic activity did not fall under the scope of the claims. Secondly, as pointed out in the decision under appeal, generating polypeptide variants as recited in the claims, such as polypeptides comprising an amino acid sequence that has at least 90% sequence identity to SEQ ID NO:110 or SEQ ID NO:100, and testing them for their enzymatic activity, was disclosed in the patent and only required the use of techniques that were routine for the skilled person working in the technical field of recombinant enzyme variants. No evidence to the contrary was submitted by the appellant. The board thus held that the identification of polypeptide sequences falling under the definitions recited in the claims was not an undue burden for the skilled person. Therefore, the board concluded that the invention as defined in the claims of the main request was sufficiently disclosed in the patent (Art. 83 EPC).