Tuesday, March 08, 2016 T 2542/12 - Can a strain be enabled without a deposit?

Presumably healthy Cod,  escaping from a cod trap

Claim 1 of this Examination appeal concerns a bacterium causing Cod's Syndrome in cod. The strain was deposited by the inventor before the priority date. Moreover, the priority document, of which the inventor is not the applicant, refers to the deposit.  Unfortunately the depositor had not properly authorized the applicant to refer to the deposited material. The board does not allow the applicant to benefit from the deposit to argue the enablement of the invention. (The decision refers to Rule 28(1)(d) EPC 1973, corresponding to Rule 31(1)(d) EPC 2000).

As the claims in this appeal make no mention of the deposited strain, the Board needs to decide if a Claim to a bacterium is enabled in the absence of a deposit. The Board admits that this is possible but continues to set a high bar for this to be allowed. The situation regarding the deposit is discussed in reasons 18-31.