6.3. Variants

If the only embodiment disclosed with concrete details in a patent is not disclosed in a manner sufficiently complete for the claimed invention to be carried out by a person skilled in the art on the date of priority with respect to the fundamental scope of said invention, it is of no significance with regard to the question of sufficient disclosure whether on the relevant date of filing a variant could have been carried out if the variant, although it is covered by the wording of the patent claim, does not fall within the fundamental scope of the claimed invention with regard to the teaching of the patent due to a lack of comparable technical success (T 1173/00, OJ 2004, 16). The board went on to state that if an invention is insufficiently disclosed, it is of no relevance whether it was objectively impossible to provide the missing information on the date of priority. The decisive issue is whether the invention is disclosed in a manner sufficiently complete for it to be carried out by an average person skilled in the art on the date of priority, with knowledge of the patent and on the basis of that person's common general knowledge.

In T 1128/22 (cylindrical box with a cork plug), the appellant (opponent) maintained in particular that the skilled person would have trouble selecting the shaping method and parameters depending on the material selected for the receptacle, since there was no single rolled-edge technique that would work for all cellulose-based materials. The skilled person would thus have to make too many selections from among the numerous methods and operating parameters. The opponent also asserted that Art. 83 EPC could only be satisfied if the disclosure of the invention allowed a person skilled in the art to implement substantially all the embodiments covered by the claimed invention without undue burden (with reference to T 1064/15). The expression "cellulose-based material" included all possible materials containing cellulose, such as wood, bamboo and banana leaves, as well as textiles such as cellulose acetate, viscose, rayon or modal. With wood, any attempt to fold it perpendicularly to the fibres would risk breaking those fibres. Therefore, unless a person skilled in the art knew the type of material being used, they would not be readily able to identify a single suitable technique to implement a rolled-edge receptacle. The board was not convinced by the appellant's arguments; they merely demonstrated that the scope of claim 1 was broad since it did not specify either the material or the method used to obtain the rolled edge. The fact that a claim has a broad scope was not in itself evidence that the skilled person would be unable to carry out the invention. In relation to a different argument, the board noted that with certain cellulose-based materials such as wood, the skilled person might, in some circumstances (which would also need to be demonstrated by the appellant), be unable to carry out a method for obtaining a rolled edge (as argued by the appellant). However, this did not necessarily cast doubt on whether the skilled person would be able to carry out the invention (Art. 83 EPC). As set out in decision G 1/03 (OJ 2004, 413, point 2.5.2 of the Reasons): "Either there is a large number of conceivable alternatives and the specification contains sufficient information on the relevant criteria for finding appropriate alternatives over the claimed range with reasonable effort. If this is the case, the inclusion of non-working embodiments is of no harm".

As regards alternatives, see also in this chapter II.C.5.2., II.C.5.4., II.C.7.1.2 and II.C.7.1.4.