T 0454/13 - Remote field

Key points

• The opponent alleges lack of inventive step based on D6 -D8.
• The Board is not persuaded. "D6 to D8 are however from a field remote from the field of biological testing [of claim 1], i.e. these documents all concern the manufacturing of semiconductor devices [] and therefore cannot give any hint of how to solve the problem of improving temperature uniformity between a plurality of samples of biological material located on a microcard." 

EPO T 0454/13 - link


Summary of Facts and Submissions

The sole independent claim of the patent as granted reads as follows:

"1. A sample block apparatus (30) for a thermal cycler configured for use with a microcard (12) containing a plurality of samples of biological material, comprising:
- a sample block (34) comprising an upper surface (52) configured for resting a microcard (12) thereon, the upper surface (52) including surface irregularities for defining spaces (54, 56) between the surface irregularities and a microcard (12) that may be positioned thereon;
 - a vacuum source in fluid communication with the space (54,56) []; and
 - a temperature control system []."

Reasons for the Decision

2. Inventive step

2.1 The invention

The invention concerns a sample block apparatus and a method for maintaining a microcard on a sample block.

2.2 Closest prior art

2.2.1 Appellant 2 proposed any of documents D1 to D4 as representing the closest prior art.

The board considers D1 to represent the closest prior art for the following reasons.

D2 discloses a sample block in the sense of claim 1 except for the surface irregularities as called for in that claim. []

2.7 Obviousness

2.7.1 According to appellant 2, the solution was obvious in view of any of documents D6 to D8 and also in view of document D4.

The board notes that documents D6 to D8 can be considered to disclose surface irregularities in the sense of claim 1 because when using the devices disclosed therein, spaces are formed which are delimited on the one side by a card-like substrate and on the other side by a structural portion which the skilled person would consider to be part of the upper surface of the plate, the structural portion being opposed to the microcard and distant therefrom (see D6, Figure 2 and paragraph [0025]; D7, Figures 1, 2 and 4; D8, Figure 2). In particular, D6 (loc. cit.) discloses channels in the sense of dependent claim 2 the opposed patent.

D6 to D8 are however from a field remote from the field of biological testing, i.e. these documents all concern the manufacturing of semiconductor devices (see D6, paragraph [0002]; D7, column 1, lines 9 to 15; D8, column 1, lines 6 to 12) and therefore cannot give any hint of how to solve the problem of improving temperature uniformity between a plurality of samples of biological material located on a microcard.

Appellant 2 argued that D1 proved that it was common general knowledge that similar problems arose in the fields of semiconductor manufacturing and biological testing.

D1 is however a single patent specification which on its own fails to prove common general knowledge. The board notes that D1 indeed teaches that the device disclosed therein may be used in thermal cycling of substrates such as semiconductor wafers as well as in thermal cycling in PCR processes (column 12, lines 48 to 59). This however does not mean that the skilled person would look for solutions in the field of semiconductor manufacturing when faced with the specific problem of increasing temperature uniformity between a plurality of biological samples on a microcard. As the issue of biological samples is not normally encountered in the field of semiconductor manufacturing, he would have no incentive to look for a solution in that field. For the sake of completeness, the board also observes that D1 only mentions PCR processes but is silent as to a microcard having a plurality of biological samples thereon, i.e. a system wherein temperature non-uniformity between individual sample chambers in a microcard could possibly occur.

For the above reasons, the skilled person would have been dissuaded from consulting documents D6 to D8.