T 1289/09 – Only One? Not Necessarily

This decision contains a useful reminder concerning the closest prior art:

[4.5.4] The argument that for an invention there exists only one closest prior art document and that another prior art document cannot be used for attacking inventive step of the process claim 1, cannot be accepted in particular in view of the established case law, see e.g. T 967/97 (see Case Law of the Boards of Appeal of the European Patent Office, 6th edition, 2010, chapters I.D.2, and I.D.3.1 to I.D.3.5). As shown above, the cited documents D2 and D3 represent feasible starting points for attacking inventive step of the subject-matter of the product claim and the process claim respectively.

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