Reasonable Expectation of Success? BGH "Calcipotriol-Monohydrat"

A skilled person trying to asses Germany's expectation of
success in today's semifinals.

The Federal Supreme Court (BGH) has spent much effort in further developing the case-law on the inventive step in the last months. The mantra is that the skilled person has to find an incentive (Anregung)  to tacke certain technical measures departing from the "beaten tracks", i.e. the usual way of doing things.

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.