T 0570/18 - Dairy Nutrition with Cereals

Key points

•  The patentee is a big food company.
• " Claim 1 of the main request (patent as granted): "The use of a fermented dairy product contained in a container for mixing with cereals, wherein the mixing comprises the following steps: a) providing cereals in a recipient having an upper opening, preferably a bowl, a cup, a glass, or a plate, b) pouring the fermented dairy product from the container onto the cereals, and c) optionally stirring with a stirring mean [sic], preferably with a spoon, and wherein the fermented dairy product has a viscosity of from 300 to 600 mPa.s, [] measured at 10°C [and further measurement details]."
• See the patent application here: https://patents.google.com/patent/WO2012038391A1/ 
• The Board: " The patent aims at promoting the consumption of a fermented dairy product contained in a container, and involves mixing the dairy product with cereals. The dairy product's specific viscosity - prevents the cereals from being immediately and completely covered with the dairy product; - calls for not much stirring (paragraphs [0012] and [0013]); and - is stated to be associated with crunchiness of the cereal even after contact with the fermented dairy product (example 6).' 
• " D2 is an excerpt from the Mintel database GNPD. It describes three packaged commercial products sold before the patent's priority date. One of the entries in the database is the product with the record ID 1278892 ("Rumblers Oat Crunch"), sold in April 2010. This is the product that is referred to as D2 in the following. The package of D2 "Rumblers Oat Crunch" comprises a cereal product in a first container and a yogurt (i.e. a fermented dairy product) in a second container. The label instructs the consumer to pour the yogurt onto the cereal product and to stir (figure, page 4)." 
• "the claimed use differed from D2 only by the viscosity range in claim 1." 
• " In the patent in suit, the comparative fermented dairy products have a viscosity far from the viscosity range called for in claim 1 and there is only one data point within this range. No data was provided for the commercial product of D2.

  2.6.4 A decisive point lies in comparing the claimed subject-matter with the closest prior art D2. There is no disclosure in D2 of the viscosity of the fermented dairy product. During the opposition proceedings, which started in April 2016, it was not possible to establish the viscosity of the fermented dairy product of D2 at the point of time when it was sold." 

• " In 2017, the opponent attempted to obtain further information on the viscosity of the product of D2. In the meantime, products sold under the brand "Rumblers" were no longer available. These products had been rebranded in 2014 as "Nomadic Oat Clusters", as press release D8 shows. For a product belonging to this brand, the opponent established the viscosity of the yogurt at about 300 mPa.s." 

• The patentee: " there was no certainty that the product of D2 and those sold under the brand "Nomadic Oat Clusters" were identical. The rebranding could have been associated with a modified composition and in particular a modified viscosity."

• The Board: " However, there is no evidence that the rebranding exercise changed the product of D2 in terms of its textural properties.   Rather, the contrary applies. The press release D8 informs the public that the product formerly known as "Rumblers" was rebranded to "Nomadic Oat Clusters" and this involved "combining the same taste and creamy Irish yogurt, just with a new name and a great new look". It is more likely than not that the rebranding only changed the presentation of the product, while the textural properties or viscosity remained as they were. Moreover, the appellant is correct that it would be improbable and uncommon for changes influencing the consumer's perception of the product not to be mentioned in the press release."

• The Board finds the effect not proven.

• " Therefore there is no effect to be considered in the formulation of the technical problem.' 

•  " Consequently, starting from D2, the technical problem is the provision of an alternative use." 

• " The skilled person would consider modifying the runny property of the fermented dairy product, i.e. its viscosity. The board fails to see anything other than an arbitrary selection in the distinguishing feature. Furthermore, the appellant correctly argued that to arrive at the viscosity range called for in claim 1 would be a matter of routine. The skilled person would modify the runniness (i.e. viscosity) of the yogurt while ensuring that it adequately coated the cereal and met customers' preferences." 

• The Board finds the claim to lack an inventive step and, after consideration of an auxiliary request, revokes the patent.

• For the real EQE Paper C experience, the decision even includes a paragraph about " a  a blogger's report on the product "Rumblers Oat Clusters", published shortly after the patent's filing date (DYC1). " 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t180570eu1.html