17 May 2018

T 1266/16 - Declaration inventors not credible

Key points

  • In this opposition appeal the Board decides about novelty of a method claim which requires that thiourea is used with less than 1.0 wt.% Calcium.
  • " The appellant [patent proprietor] submitted two declarations (D29, D30) by the inventors of the patent in suit stating that "during the development of the invention, thiourea was obtained from a number of different commercial suppliers. The Ca content in the commercially available industrial thiourea from some of these suppliers was found to be more than 1.0 wt%"."
  • | Notwithstanding that both declarations are word-for-word identical regarding thiourea purity, they do not contain any specific detail with respect to the suppliers they refer to, let alone any data regarding purchase or analysis performed. As such, these statements, devoid of any corroborating evidence, cannot be considered as proof of the appellant's argument." 



EPO T 1266/16 - link


10.1 Commercially available thiourea
There is no evidence on file which could show that thiourea with a higher content of calcium than [the maximum content specified in] claim 1 was commercially available at the filing date of D1.
The appellant [patent proprietor] submitted two declarations (D29, D30) by the inventors of the patent in suit stating that "during the development of the invention, thiourea was obtained from a number of different commercial suppliers. The Ca content in the commercially available industrial thiourea from some of these suppliers was found to be more than 1.0 wt%".
Notwithstanding that both declarations are word-for-word identical regarding thiourea purity, they do not contain any specific detail with respect to the suppliers they refer to, let alone any data regarding purchase or analysis performed. As such, these statements, devoid of any corroborating evidence, cannot be considered as proof of the appellant's argument.
In contrast, the respondents have submitted ample evidence that thiourea having a very low calcium content was not only available but standard before the filing date of D1. D4 refers to 98.0% pure thiourea having an ignition residue (sulfate) of 0.01% of lower, which includes not only calcium, but also sulfate conterions and other cationic impurities; D5 and D6 also refer to 99% pure thiourea (see partial translations); D10 relates to 99.7% pure thiourea having less than 0.1% sulfate-ash; D14 discloses 99.0% pure thiourea having less than 0.10% ash.
This argument of the appellant is thus not convincing.

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