Chapter VII – Inventive step
13. Inventive step assessment in the field of biotechnology
In the field of biotechnology, obviousness is considered at hand not only when results are clearly predictable, but also when there is a reasonable expectation of success. In order to render a solution obvious, it is sufficient to establish that the skilled person would have followed the teaching of the prior art with a reasonable expectation of success. Likewise, a mere "try and see" attitude in light of the closest prior art does not necessarily render the solution inventive.
On the other hand, a "reasonable expectation of success" is not to be confused with the "hope to succeed". If researchers are aware when embarking on their research that, in order to reach a technical solution, they will need not only technical skill but also the ability to make the right non-trivial decisions along the way, this cannot be regarded as a "reasonable expectation of success".
For the assessment of inventive step of antibodies, see G‑II, 5.6.2 G‑II, 6.2.