e) Invoking G 2/21 for evidence of a non-therapeutic effect 

The board in T 2037/22 (PBAT resin composition) dealt explicitly with the allegation of the appellant (opponent) that evidence D4 and D5 should not be taken into account, since it would be derivable from decision G 2/21 that a lack of sufficiency of disclosure could not be remedied by post-published evidence. In the board’s view, the appellant's argument relying on G 2/21 was based on a generalisation of analysis made by the Enlarged Board which exclusively concerned the case law relative to claimed therapeutic effects. The Enlarged Board, however, had not made such a generalisation, let alone undertaken any analysis of the case law concerning any other type of effect in relation to sufficiency of disclosure. There was in particular no indication that the Enlarged Board in G 2/21 was of the view that in order to meet the sufficiency requirement, proof of a claimed technical effect which was not a therapeutic effect had to be provided in the application as filed, let alone in general for a parametric or functional definition meant to provide a limitation of the subject-matter defined otherwise in terms of structural features.