7.1.3 Repeatability

An invention may also be sufficiently disclosed where results are not exactly repeatable. Variations in construction within a class of genetic precursors, such as recombinant DNA molecules claimed by a combination of structural limitations and functional tests, were immaterial to the sufficiency of disclosure provided the skilled person could reliably obtain some members of the class without necessarily knowing in advance which member would thereby be made available (T 301/87, OJ 1990, 335).

The claimed subject-matter in T 657/10 included an "elite event", i.e. a particular event resulting from a random method (for which the expectations always range from nil to high) and having at least one surprising, advantageous property. There was ample jurisprudence of the boards of appeal on "elite events". Although the specific random methods and resulting products with (normal) average properties might well be known in the prior art, the presence of a particular product with an unexpected advantageous property might justify the recognition of an inventive step. However, the disclosure has to enable a skilled person to obtain the particular product resulting from the "elite event" without the need to repeat the random method de novo, i.e. he must be able to obtain the particular product without having to rely on pure chance again. In the case before the board these requirements were not fulfilled.

In T 326/22 the appellant opponent by reference with T 657/10 argued that the antibody as defined in claim 1 was insufficiently disclosed in the patent application as a matter of principle because this required a de novo generation of further CD47 antibodies by a process that was based on chance. The board agreed with the appellant insofar as the process of immunising an animal with the CD47-IgV antigen disclosed in example 1 of the patent application for generating further CD47 antibodies was based on chance. However, there were no indications available to the board that the CD47-IgV antigen or the discontinuous epitope on CD47 as defined in claim 1 were uncommon in the sense that the generation of further antibodies against them required specific conditions or circumstances. In the absence of evidence to the contrary, the claimed epitope thus represented a standard epitope on a standard antigen. The board found therefore, that the disclosure in the patent application of solely one antibody (2A1) and its derivatives as such was not evidence that the generation of 2A1 was based on chance. The appellant's submission in this regard was not based on verifiable facts and hence not persuasive. The board considered the cases T 435/20, T 1466/05 and T 657/10 alleged by the opponent as not applicable to the case at issue.