21 Dec 2016

T 2167/13 - Novelty and multiple selections

Key points

  • The case involved novelty based on multiple selections of values from ranges for different parameters. The Board recalls that in such a case the selection does not need to be purposive, as for novelty based on a single selection. 
  • "it might be that a single selection has to fulfil certain criteria in order to establish novelty as laid down in T279/89. However, the viscosity range is not the only feature distinguishing the subject-matter of claim 1 from the prior art. In case of multiple selections an individual selection cannot be disregarded by the mere fact, that the selection is not purposive. It is established case law, that where claimed subject-matter is defined by various parameters, in the present case not only viscosity but also [...], the question of novelty cannot be answered by contemplating the ranges of the various parameters separately" (emphasis added).

EPO T 2167/13 -  link



1.2 As acknowledged by the examining division D1 does not explicitly disclose
(a) using a slurry having
(i) a viscosity of 1 to 1000 Pascal-seconds at room temperature when tested at a shear rate of up to 70 seconds**(-1) and
(ii) a flow index of less than 0.6,
(b) the injecting being carried out at a hydrostatic pressure of 0,07 to 7 kilograms per centimetre square,
(c) wherein the thin wall disposable core die has an average wall thickness of 0.5 to 10 millimetres,
(d) restoring the thin wall disposable core die to its original position upon removal of the hydrostatic pressure.
The examining division argued that features a), c) and d) are implicitly disclosed by D1; this is contested by the appellant.


1.3 Assessment of feature a)
Paragraph [0015] in column 4 of D1 discloses the introduction of a ceramic slurry into the cavity of the sacrificial die, wherein the slurry contains sufficient liquid phase to provide a viscosity that is usually less than about 10 000 Pascal-seconds.
D1 does not indicate under which conditions (temperature, apparatus, etc.) this slurry viscosity is measured. In the absence of any temperature and measurement conditions (e.g. shear rate or spindle details of the viscosimeter) the actual viscosity values of less than 10 000 Pascal-seconds is difficult to compare with the range defined in present claim 1.
Furthermore, concerning the flow index (a measure of non-Newtonianness) no teaching can be found in D1 at all.
The examining division concluded that this feature is disclosed, since the selection of the viscosity range defined in claim 1 does not meet the criteria set out in T279/89.
It might be that a single selection has to fulfil certain criteria in order to establish novelty as laid down in T279/89. However, the viscosity range is not the only feature distinguishing the subject-matter of claim 1 from the prior art. In case of multiple selections an individual selection cannot be disregarded by the mere fact, that the selection is not purposive. It is established case law, that where claimed subject-matter is defined by various parameters, in the present case not only viscosity but also flow index, hydrostatic pressure and the die wall thickness (see below), the question of novelty cannot be answered by contemplating the ranges of the various parameters separately (see Case Law of the Boards of Appeal, 7th edition, 2013, Chapter I.C.5.2.3, in particularly T653/93).
Hence, the novelty selection criteria are not appropriate in this case for determining the disclosure of the viscosity.
Thus, the board reaches the conclusion that feature a) is not disclosed implicitly by D1.

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