Abstract on Article 123(2) EPC for the decision T0137/24 of 22.01.2026

See also abstract under Article 83 EPC. In T 137/24 the board concluded that claim 1 of the main request did not contain subject-matter that extended beyond the content of the application as filed (Art. 123(2) EPC). The board explained that claim 1 of the main request was based on claims 2 and 3 of the application as filed. Compared to the disclosure in claims 2 and 3 of the application as filed, claim 1 of the main request contained four additional features. The third of these features ("feature (iii)") was that the GOT polypeptide comprised an amino acid sequence having at least 90% (instead of at least 65%) sequence identity to sequence SEQ ID NO:110 or SEQ ID NO:100. The appellant (opponent 2) asserted that feature (iii) constituted a selection from a list of independent alternatives. The board disagreed, observing that feature (iii) was disclosed in several paragraphs of the application as filed in a list of increasing amino acid sequence identities to SEQ ID NO:100 or SEQ ID NO:110, starting from at least 65% to at least 99.9% and ending with 100%. Selecting an amino acid sequence identity from such a list that was higher than the amino acid identity recited in the claims of the application did not constitute a selection from a list of independent alternatives. The board explained that, instead, lists of increasing amino acid sequence identities to a given amino acid sequence – here SEQ ID NO:100 or SEQ ID NO:110 – were convergent lists of preferred options from the lowest amino acid sequence identity to the given amino acid sequence (least preferred) to the highest amino acid sequence identity (most preferred). In addition to the identity with the most preferred amino acid sequence, the polypeptide recited in the claim was functionally defined in the claim by its enzymatic activity (a GOT polypeptide). This meant that the increase of the amino acid sequence identity to SEQ ID NO:100 or SEQ ID NO:110 from 65% to 90%, as recited in the claim, merely narrowed down the GOT polypeptides falling within the definition in the claim, without singling out specific polypeptides or conferring any new properties to these polypeptides. The board pointed out that, in line with the considerations set out in T 2134/10, the selection of a degree of sequence identity with a given (most preferred) amino acid sequence from a convergent list for a functionally defined polypeptide did not single out a particular molecule or confer properties to this molecule that were not disclosed in the application as filed. Feature (iii) therefore had a basis in the application as filed.