3.8.1 Defective disclosure

In T 211/01 the board stated that, apart from the fact that a skilled person would normally not consider an obviously defective disclosure at all, it would in particular be artificial to select a defective disclosure as a starting point for evaluating inventive step when there existed other prior art which was not doubted with regard to its disclosure, but was also directed to the same purpose or effect as the patent in suit. A document which is so obviously defective as to be readily recognised as such by those skilled in the art when trying to reproduce its disclosure cannot be taken as the most promising and appropriate starting point for the assessment of inventive step. The board highlighted that according to the case law of the boards of appeal, the starting point for the assessment of inventive step should be one which is at least "promising" in the sense that there was some probability of a skilled person arriving at the claimed invention (see also T 228/23).