3.5.3 Speculative character

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.

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 725/11 the invention was directed to a pharmaceutical co-formulation in the form of a tablet comprising two active ingredients for HIV therapy. The board did not acknowledge an inventive step over an announcement by the patentee of a clinical trial of that combination therapy in an industry journal article. The patentee argued that this journal article was not the closest prior art because it was silent on efficacy and did not provide any technical details. The board disagreed and stated that the journal article amounted to a concrete plan to develop a commercially viable product with a usable level of efficacy. Furthermore, the article was a public statement of intent made by the patentee's CEO and its executive vice president of research and development which would not be dismissed by the skilled person as mere speculation.