9.21.9 Choice of one of several obvious solutions
In T 190/03 of 29 March 2006 date: 2006-03-29 the board stated that in connection with the obviousness of a solution chosen from various possibilities, it was sufficient that the one chosen was obvious and not necessarily relevant that there were several other possible solutions (see also T 214/01, T 688/14).
In T 357/02 the board found it followed from the minimalist character of the technical problem objectively arising from the closest prior art, which could only be formulated as a modification of that state of the art, that regardless of a success or failure of the measures applied, almost any modification of the latter process might be regarded as a feasible alternative by the person skilled in the relevant art, and therefore obvious, since each corresponding solution would be equally useful (or useless).
In T 1072/07 the board concluded that to solve the problem (how to select a suitable type of burner), the person skilled in the art had to make a choice between two well-known possibilities. Either choice, which in a particular situation would be based on balancing the advantages of the specific type of burner being selected, such as efficiency in its operation, with its disadvantages, such as technical adaptations required and costs involved, was therefore obvious and did not involve an inventive step.
In T 1045/12 the appellant (applicant) argued that the solution to the objective technical problem taught by D3 was one of several, equally likely options and that the board had to provide a reason why the skilled person would have selected the claimed option. The board disagreed. The fact that there were other options had no bearing on the obviousness of one specific option. Furthermore, if all options were equally likely, then the invention merely resulted in an obvious and consequently non-inventive selection among a number of known possibilities. See also T 288/15.