c) Speculative subject-matter

According to decision T 517/98 (grains of superconductor material – density), the patent in suit had only shown the way of achieving the goal to some extent and within set limits, but certainly not over the whole ambit of the claim. In the board's judgement, broad protection such as that claimed was unjustified since such a claim encompassed speculative subject-matter which could not be produced by the skilled person without inventive ingenuity (see also T 409/91). The main request failed (Art. 83 EPC). See also T 748/19 (application limited to presenting a concept) and T 2046/19 below.

In T 2046/19, both the opposition division and the respondent (patent proprietor) reasoned that the criterion of sufficiency of disclosure was met already because the example disclosed one way of performing the invention. The board, with useful reference to the principles laid down in the case law, did not share this view. It found that claim 1 and the opposed patent as a whole merely provided a general concept of a speculative nature. The opposed patent did not provide any generalisable teaching that would give guidance to the person skilled in the art in finding working embodiments across the scope claimed.