7.2.1 Preliminary remark

It should first be noted that G 2/21 (OJ 2023, A85) reiterates the basic principles derived from existing case law, essentially with reference to T 609/02 (see above) for sufficiency of disclosure. Indeed, although G 2/21 dealt with inventive step, the Enlarged Board stated that, as the terminological notion of plausibility is mainly to be found in the case law of the boards with regard to the patentability requirement of sufficiency of disclosure, the Enlarged Board accepted the appropriateness of a comparative analysis and comparative considerations in this regard (point 73 of the Reasons). The Enlarged Board departed from the concept of "plausibility". It held that the term "plausibility" that is found in the case law of the boards of appeal and relied upon by the referring board (T 116/18 of 11 October 2021 date: 2021-10-11) did not amount to a distinctive legal concept or a specific patent law requirement under the EPC, in particular under Art. 56 EPC and Art. 83 EPC. It rather described a generic catchword seized in the jurisprudence of the boards of appeal, by some national courts and by users of the European patent system (point 92 of the Reasons). See also chapter I.D.4.3.3a).

See G 2/21, in particular points 74 and 77 of the Reasons, for a reiteration of the basic principles; these are the most commonly cited points in the case law of the boards as regards sufficiency of disclosure of a therapeutic effect following G 2/21.

For confirmation of how G 2/21 applies to questions of sufficiency, see e.g. T 1779/21 and T 979/23 (both about Dravet syndrome, a serious disease), and T 294/20 (point 5 of the Reasons). Regarding the limits of this applicability, see T 2037/22 (point 3.3 of the Reasons) regarding a non-therapeutic effect.