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.

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