Key points
- A little puzzle: in this case the Board considers the claims of AR-12 to lack inventive step over D3 as the closest prior art. The patentee then adds a feature to claim 1 that is (undisputed) also disclosed in D3. The Board finds the claim to be inventive with this added feature.
- The reasons are as follows. In AR-12, the Board found the technical effect claimed in the description to be not plausibel over the entire range claimed. The opponent had submitted examples of products falling under the broad claim but not having the improved storage stability. Therefore, the claimed subject-matter was an obvious alternative in view of D3.
- The added feature is that the composition comprises 40-80 w/v% glycerol. This feature “does not further distinguish the claimed subject-matter from D3” but the examples prepared by the opponent are outside this range (they have a lower glycerol concentration).
- “In view of all the experimental data provided by the parties, the Board considers that this effect can furthermore be extrapolated to the entire claimed scope, given that all the examples on file which fall under the present scope exhibit good stability data.”
- “even if there is no evidence of an improvement over D3, the achievement of a good storage stability remains a property of the present process which cannot be ignored”
- “the objective technical problem to be solved by the process of claim 1 of auxiliary request 18 lies in the provision of an alternative process for the preparation of oral levothyroxine compositions having good storage stability.”
- The solution (other features of the claim) is non-obvious.
T 1193/18 -
decision text omitted.
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