1 Nov 2016

T 0715/11 - Support by example

Key points

  • What kind of support does Article 84 EPC require? In this case, the Board notes that a functional feature of a claim is illustrated in the examples which thereby provide support under Article 84 EPC.

EPO T 0715/11 - link

Article 84 EPC
11. The appellant contested the opposition division's adverse findings concerning the objection to claim 17 under Article 84 EPC (see last paragraph in section 10 of the decision under appeal).
12. Article 84 EPC requires the claims to be clear and concise and to be supported by the description. In the board's view, in particular as regards the feature "... and is capable of enhancing the growth rate of the lactic acid bacterial strain", claim 17 is clear within the meaning of Article 84 EPC. Whether or not a helper organism as specified in claim 17 enhances the growth rate of a lactic acid bacterial strain in a starter culture composition comprising both can be easily determined using methods that are well known in the art.
13. The experiments in the examples of the patent show that co-cultivation of a lactic acid bacterial strain with a lactic acid bacterial helper organism defective in its pyruvate metabolism results in a pH decrease due to increased acid production by the lactic acid bacterial strain (see Figures 4, 5, 6A, 7A and 8A). Since lactic acid bacteria normally produce lactic acid in proportion to the cell mass (see document (24), page 204, line 2), it can be inferred from the increased acid production that the growth rate of the lactic acid bacterium is enhanced. Thus, contrary to the appellant's argument, claim 17 is in fact supported by the examples of the patent.
14. For these reasons, the board holds that claim 17 fulfils the requirements of Article 84 EPC.

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