T 2274/14 - No examples

Key points

• In this opposition appeal, the invention " aims to provide advantageous lipid formulations for the support of brain function" . The patentee asserts as technical effect: " to provide an improved lipid composition to support brain function" .
• However, the patent application has no working examples.
• The Board considers the mere statement in the patent application, " Nutritional status of neuronal cells, in particular of neurons, astrocytes and glial cells is improved against prior art lipid blends." to be such, that " this general statement simply cannot be used to establish an unexpected effect of the claimed compositions over any prior art composition, in particular those of D2." 
• The strategy of including no examples in the patent application seems a bit similar to the Dasatinib case (T 0488/16). Of interest,  M. Caines at D Young commented on T 0488/16 in a case not including the remark: " As was not uncommon practice at the filing date, BMS appeared to have been in possession of data, but chose not to include this in the application." 

EPO  T 2274/14  - link

2. Inventive step

2.1 The patent is directed to lipid blends comprising selected fatty acids for improving brain function in a mammal, in particular in the elderly (paragraph [0001]). The patent itself acknowledges that lipid blends have already been used in the manufacture of foods for improving brain function and that these known compositions have drawbacks (paragraph [0003]). The invention aims to provide advantageous lipid formulations for the support of brain function (paragraph [0006]).

In paragraph [0013] it is stated that the claimed compositions have been developed to fully support brain function by improving nutritional status of neuronal cells. According to paragraph [0042], support of brain function is intended to improve skills related to activities of daily living, cognition, social skills, decision-making skills, motoric skills and abilities to live without the help of others. The brain function is also said to be supported in a prodromal patient for a neurological disorder, in a patient suffering from a cognitive decline or in a patient suffering from senile dementia, Alzheimer's disease, diabetes or insulin resistance or in a patient who has experienced a physical trauma or toxicological trauma (paragraph [0043]).

[...]

2.3.1 According to the appellant, the problem underlying the patent in the light of D2 was to provide an improved lipid composition to support brain function (paragraph [0013] of the patent specification).

2.3 Problem to be solved and its solution

2.3.2 This was contested by the respondent, which argued that no technical effect due to the distinguishing features had been demonstrated in the patent.

2.3.3 The board agrees with the respondent that there is no evidence on file showing any improvement achieved by the claimed compositions over those of D2:

- The patent does not contain any working example showing any effect of the claimed compositions;

- D12 and D17, on which the appellant basically relied in the written procedure, have not been admitted into the proceedings by the board, essentially because they were not suitable to support any improvement achieved by the compositions of claim 1 (see points 1.3 and 1.4 above); and

- D15 was not used by the appellant during the oral proceedings because it had been filed for a different purpose.

2.3.4 The board also cannot follow appellant's argument that paragraph [0013] of the specification demonstrates that the above problem has been credibly solved. The sentence cited by the appellant reads:

"The lipid fraction as described below in detail has been developed to fully support brain function. Nutritional status of neuronal cells, in particular of neurons, astrocytes and glial cells is improved against prior art lipid blends." (emphasis by the board).

This general statement simply cannot be used to establish an unexpected effect of the claimed compositions over any prior art composition, in particular those of D2.

2.3.5 Under these circumstances, the problem underlying the patent has to be reformulated in a manner that does not include any advantage over the disclosure of D2, that is to say, as being to provide further lipid compositions to support brain function.

2.3.6 It is undisputed that this less ambitious problem is indeed solved by the claimed compositions.