T 0870/04 (BDP1 Phosphatase/MAX-PLANCK) of 11.05.2005

Main request and auxiliary request - industrial application (no)

(1) Merely because a substance (here: a polypeptide) could be produced in some ways does not necessarily mean that the requirements of Article 57 EPC are fulfilled, unless there is also some profitable use for which the substance can be employed (cf. point 4 of the reasons).
(2) For the purposes of Article 57 EPC, the whole burden cannot be left to the reader to guess or find a way to exploit an invention in industry by carrying out work in search for some practical application geared to financial gain without any confidence that any practical application exists (cf. point 19 of the reasons). A vague and speculative indication of possible objectives that might or might not be achievable by carrying out further research with the tool as described is not sufficient for fulfilment of the requirement of industrial applicability. The purpose of granting a patent is not to reserve an unexplored field of research for an applicant (cf. point 21 of the reasons).
(3) In cases where a substance, naturally occurring in the human body, is identified, and possibly also structurally characterised and made available through some method, but either its function is not known or it is complex and incompletely understood, and no disease or condition has yet been identified as being attributable to an excess or deficiency of the substance, and no other practical use is suggested for the substance, then industrial applicability cannot be acknowledged. Even though research results may be a scientific achievement of considerable merit, they are not necessarily an invention which can be applied industrially. (cf. point 6 of the reasons).