Speculative character of closest prior art 

In T 184/10 the respondent argued that document (14) did not qualify as closest prior art because of its speculative character. The board stated that the author of document (14) gave an outlook into future trends, which were of course not yet verified by experimental evidence. In view of the fact that this outlook was based on the data available at the time, the skilled person would not dismiss it as pure speculation. Instead, he would regard it as a serious attempt to interpret the existing state of the art. As a consequence, the content of document (14) qualified as closest prior art.

In T 1764/09 the board noted that D1 was no more than a speculative review of what might be potentially feasible in the future. No concrete realisation of a fully adapted lens for a contact or intraocular lens was described in D1. Therefore, for this reason alone, D1, the document selected by the examining division, could not objectively be considered as a realistic starting point or the most promising springboard towards the claimed invention.

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