In T 1764/09 the board noted that D1 was no more than a speculative review of what might be potentially feasible in the future. No concrete realisation of a fully adapted lens for a contact or intraocular lens was described in D1. Therefore, for this reason alone, D1, the document selected by the examining division, could not objectively be considered as a realistic starting point or the most promising springboard towards the claimed invention.

According to established case law, a central consideration in selecting the closest prior art is that it must be directed to the same purpose or effect as the invention, otherwise it cannot lead the skilled person in an obvious way to the claimed invention.