2. The idea that the skilled person could in fact be a team was endorsed in Erythropoeieten/Kirin-Amgen T 412/93 decided 21 November 1994, it being noted that the composition of the team might depend upon which aspect of the case under consideration.
3. Aluminium alloys/Alcan T 465/92 [1996] OJ EPO 32. In its decision, the board noted that since the problem and solution approach relies on a search made after the invention is known it is inherently based on hindsight and thus can lead to the wrong result in some cases. In the case it had before it the board was confronted with a number of different pieces of prior art which seemed of equal relevance disclosing other attempts to solve the same problem. The board concluded that in this case the relevant test was simply whether or not any of these pieces of art "contained any pointer" to the claimed step.
4. Although in Hearing Aid/Bosch,T 109/82, [1984] OJ EPO 474 it was held that there was nothing inventive in merely being the first to pose a problem if that posing was itself obvious, in Simethicone Tablet/Rider T 2/83, [1984] OJ EPO 265., it was held that the discovery of a yet unrecognized problem may, in certain circumstances (especially where the skilled person would not have expected any useful benefit to follow from the step taken) give rise to patentable subject matter in spite of the fact that the claimed solution is retrospectively trivial and in itself obvious.
5. T 253/85 1987] 4 EPOR 198.
6. T 455 [1995] OJ EPO 684.
7. The reasonable expectation of success approach was also taken in Harvard/fusion proteins T60/89 [1992] OJ EPO 268 where it was stated that the "key question ... is whether it was obvious for a skilled person to try the idea outlined above with a reasonable expectation of success".
8. T0915/93 decided April 22, 1994.
9. T296/93 [1995] EPOR 1.
10. In Chymosin/Unilever T386/94 [1996] OJ EPO 658 it was held that in the field of gene technology there may be an inventive step if there is no reasonable expectation of success that the cloning and expression of a given gene can be carried out. However, this is not the case where a skilled person can carry out the tasks in question in a fairly straightforward way even if this requires much work unless problems arise that prove that the expectation of success was ill-founded.
11. EPO Decision T 886/91 and Biogen Inc v Madeva plc [1997] RPC 1. This case is discussed further in the National Decisions section of this paper.
12. Case T 939/92 [1996] OJ EPO 309.
13. T 0964/92 decided 23 August 1994.
