|A skilled person trying to asses Germany's expectation of |
success in today's semifinals.
The decision BGH X ZR 98/09 "Calcipotriol-Monohydrat" seeks to clarify the degree of intensity of this incentive in the prior art and adopts - according to this blogger's knowlege for the first time - the notion of a "reasonable expectation of success" needed for the skilled person do do certain experiments. This notion is widely used in the case law of the EPO Technical Boards of Appeal and goes back to T 60/89, 3.2.5.
According to the BGH, the consideration whether or not the adoption of certain measurs described in the prior art may for solving the technical problem under consideration "may gain in importance" when assessing whether or not the skilled person had an incentive to adopt these measures.