T 0456/19 - Biological control composition

Key points

•  Claim 4  is directed to: A biological control composition comprising:
  
  - at least one population of arthropod biological control agents [ claims 5: of the species the species Ambyseius swirskii - wiki],
  
  - a nutrient source comprising astigmatid mite eggs, characterized in that said nutrient source does not contain larvae, nymphs and adult astigmatid mites,
  
  - optionally, a support and/or dissemination substrate."
• The claims are held to lack an inventive step.
• The case is to some degree similar to Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948) (link), about a patent with claims directed to a mixture of naturally occurring (non-modified) bacteria.

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t190456eu1.html

2.6 Obviousness

In line with the appellant's arguments, the claimed solution is obvious over D3 alone.

D3, first full paragraph on page 3, states that in conventional mass rearing systems predator mites tend to feed mainly on the eggs of the prey mites, since the juvenile and adult forms of most mites that are used as prey are quite hairy.

This is reconfirmed in D3, third paragraph of page 7, where it is stated that predator mites feed on the egg stages of mite hosts, since the juvenile and adult stages of many mite hosts are quite hairy.

D3 suggests using Thyreophagus entomophagus, since this is less hairy, so that predator mites can attack more stages of the mite's life cycle.

Consequently, the skilled person would deduce from D3 that either all stages of the fairly non-hairy Thyreophagus entomophagus or, in a conventional manner, the egg stages of other prey mites, are fed. The latter corresponds to the claimed solution. The claimed alternative is therefore known from D3 itself.

The skilled person reading D3 would thus arrive at the subject-matter of claim 1 or 4 of the main request in an obvious manner.

The respondents submitted that D3 expressed a preference for less-hairy prey mite species, and thus would deter the skilled person from using only eggs of astigmatid prey mites in the rearing of predator mites.

The Board does not find the respondents' submission convincing. As set out above, the objective technical problem is at best the provision of an alternative nutrient source for arthropod biological control agents, not the provision of alternative agents with advantageous properties. In fact, as set out above, the properties of the claimed alternative agents, if anything, are disadvantageous. Hence the skilled person trying to solve the objective technical problem would not bother about whether the alternative disclosed in D3 of feeding eggs only is inferior to the invention suggested in D3, i.e. using all stages of Thyreophagus entomophagus.

2.7 The board concludes that the subject-matter of claims 1 and 4 does not involve an inventive step in view of D3 as the closest prior art.