T 2269/22 - Beverages/COCA-COLA

Key points

• The proprietor is The Coca-Cola Company.
• Claim 1: "A beverage comprising the rare sugar D-psicose and the high potency sweetener Rebaudioside M; wherein the Rebaudioside M is greater than 95% pure; the D-psicose is present in an amount from 0.1% to 2% by weight; and the weight ratio of Rebaudioside M to D-psicose is from 1:25 to 1:100."
• The Board: "The subject-matter of claim 1 differs from D1 on account of the combination of Reb M with D-psicose in an amount of 0.1 to 2 wt.%."
• "To acknowledge an improvement over the closest prior art it must be credible that the effect originates from the distinguishing feature over that prior art. As outlined below, there is no evidence in the patent (either in the example shown in Table 14 or in paragraph [0211]) that there is an improvement over the beverage disclosed in D1. "
• "The board does not agree with the opposition division that an improvement over D1 is plausible in view of paragraph [0211] of the patent, in which certain properties of the zero calorie lemon-lime set out in Table 14 of the patent are mentioned. Paragraph [0211] of the patent mentions that "the evaluation of the zero calorie lemon lime CSD by the expert panel showed that it had a faster and more rounded sweetness and flavor profile, with very low sweet lingering and no bitterness or licorice aftertaste, showing that D-psicose helped reduce or eliminate these unwanted characteristics"; however, it does not specify with which beverage this assessment was compared. The reference point cannot be the beverage disclosed in D1. For this reason alone, the example in Table 14 of the patent is not suitable for demonstrating an improvement over D1."
• I think this pertains to evidence of a technical effect in the sense of T 939/92, not to 'plausibilty' in the sense of (the questions referred in ) G 2/21.
• However, the Board also notes that: " the experimental data submitted by letter of 5 May 2022 pertain to a completely different composition from the zero calorie lemon-lime in Table 14 of the patent. Therefore, it is not suitable for confirming the example according to Table 14 of the patent, which as such is not suitable for demonstrating that there is an improvement resulting from the difference over D1."
• " Even if it is assumed, for the sake of argument, that the data filed with the reply to the appeal were admitted on appeal, this data similarly fails to demonstrate an improvement over D1 for the same reasons as outlined above."
• The claim is held to lack an inventive step.

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222269eu1

MAIN REQUEST

1. Inventive step

1.1 The appellant argued that the claimed subject-matter lacked inventive step in view of D1 as the closest prior art.

1.2 As outlined below, the board shares this view.

1.3 The invalidity of the priority claim is common ground among the parties. The board has no reason to doubt this. Accordingly, D1 is prior art pursuant to Article 54(2) EPC.

1.4 The parties agreed that D1 was the closest prior-art document. The board shares this view. Consequently, the question of inventive step is to be assessed in view of D1 as the closest prior art.

1.5 D1 discloses a beverage comprising Rebaudioside X (Reb X) and at least one additive, and it may further contain at least one additional sweetener (see claim 40 of D1). In this context, it is noted that Reb X is a synonym of Rebaudioside M (Reb M). D1 describes that the additional sweetener may be a carbohydrate sweetener such as D-psicose (see page 34, lines 13 to 15, of D1), a synthetic sweetener (see page 34, lines 21 to 32, of D1) or a natural high-potency sweetener such as Reb A, Reb B, Reb D, mogroside V, etc. (see page 34, line 33, to page 35, line 14, of D1). Reb X and carbohydrate sweetener may be present in any weight ratio, such as from about 0.001:14 to about 1:0.01, for example about 0.06:6. Carbohydrates are present in the sweetener composition in an amount effective for providing a concentration from about 100 ppm to about 140 000 ppm when present in a sweetened composition, such as a beverage (see page 34, lines 16 to 20, of D1). Example 10 of D1 discloses blends of Reb X with other non-caloric sweeteners such as Reb B, Reb D, Reb A or mogroside V.

1.6 The subject-matter of claim 1 differs from D1 on account of the combination of Reb M with D-psicose in an amount of 0.1 to 2 wt.%.

1.7 For the following reasons, an effect resulting from this difference cannot be acknowledged over D1.

1.7.1 To acknowledge an improvement over the closest prior art it must be credible that the effect originates from the distinguishing feature over that prior art. As outlined below, there is no evidence in the patent (either in the example shown in Table 14 or in paragraph [0211]) that there is an improvement over the beverage disclosed in D1.

1.7.2 The example in Table 14 of the patent contains 2.1 wt.% D-psicose, which is outside the range of 0.1% to 2 wt.% in claim 1. Accordingly, this example could at best demonstrate that a higher D-psicose content than that required in claim 1 may lead to improved taste, such as reduced sweetness lingering. The board does not agree with the respondent that the same effect would be identified for beverages comprising an amount of D-psicose in the range of 0.1 to 2 wt.%.

1.7.3 The board does not agree with the opposition division that an improvement over D1 is plausible in view of paragraph [0211] of the patent, in which certain properties of the zero calorie lemon-lime set out in Table 14 of the patent are mentioned. Paragraph [0211] of the patent mentions that "the evaluation of the zero calorie lemon lime CSD by the expert panel showed that it had a faster and more rounded sweetness and flavor profile, with very low sweet lingering and no bitterness or licorice aftertaste, showing that D-psicose helped reduce or eliminate these unwanted characteristics"; however, it does not specify with which beverage this assessment was compared. The reference point cannot be the beverage disclosed in D1. For this reason alone, the example in Table 14 of the patent is not suitable for demonstrating an improvement over D1.

1.7.4 The experimental data of 5 May 2022 are also not suitable for demonstrating an improvement over the beverage disclosed in D1. The board agrees with the appellant that the experimental data of 5 May 2022 are not a representative comparison with D1.

1.7.5 As outlined under point 1.5 above, D1 discloses a beverage comprising Reb X, i.e. Reb M, at least one additive and an additional sweetener (see claim 40 of D1). As mentioned in example 10 of D1, the additional sweetener may be Reb X, Reb B, Reb D, Reb A or mogroside V.

1.7.6 Since D1 already discloses the combination of Reb M with an additional sweetener, for demonstrating an effect over D1 it is not sufficient to demonstrate a potential advantage over the sole use of Reb M, as done in the experimental data of 5 May 2022. The same applies to the experimental data mentioned in the reply to the statement of grounds of appeal. An additional sweetener is disclosed in D1 as part of the beverage, but this component is not reflected in the experimental data submitted by the respondent.

1.7.7 In this context, the respondent referred to samples 8 and 9 in example 10 of D1, which related to blends of Reb X with mogroside V and demonstrated increased astringency, sourness and mouth-coating, and higher mogroside V levels increased sweetness and sweetness lingering, i.e. undesirable properties.

Although samples 8 and 9 of example 10 of D1 exemplify blends of Reb X with an additional sweetener in the sense of claim 40 of D1 having undesirable properties, it is noted that samples 2 to 6 of example 10 of D1 relate to compositions leading to desirable and improved beverages. Accordingly, referencing samples 8 and 9 of example 10 of D1 does not effectively demonstrate an improvement over D1.

1.7.8 Irrespective of the above, there is no evidence on file that the claimed beverage leads to an improvement over those as disclosed in example 10 of D1, in which the improvement originates from the distinguishing feature.

1.7.9 Moreover, the experimental data submitted by letter of 5 May 2022 pertain to a completely different composition from the zero calorie lemon-lime in Table 14 of the patent. Therefore, it is not suitable for confirming the example according to Table 14 of the patent, which as such is not suitable for demonstrating that there is an improvement resulting from the difference over D1.

1.7.10 Even if it is assumed, for the sake of argument, that the data filed with the reply to the appeal were admitted on appeal, this data similarly fails to demonstrate an improvement over D1 for the same reasons as outlined above.

1.8 In light of this, the objective technical problem to be solved is to provide an alternative beverage.

1.9 With respect to the question of obviousness, it is noted that D1 already teaches D-psicose as an additional sweetener. As can be understood from paragraph [0004] of the patent, "D-psicose is self-GRAS with a letter of no objection from the US FDA and it is currently approved at a maximum level of 2.1% (w/w) in a non-alcoholic beverage". This is considered common general knowledge in the present technical field, as evidenced by D6 (see Table 2 of D6). Even if the post-published document D19 were capable of demonstrating that D-psicose has now been approved by the US FDA in higher amounts of up to 3.75 wt.%, this does not have an influence on how a skilled person would assess this on the priority date.

1.10 In view of this information, a skilled person seeking a solution to the above problem would not freely choose the amount of D-psicose, but would consider the above regulatory limitations (D6), i.e. would choose a maximum level of 2.1 wt.%. The board agrees with the appellant that any commercial development using D-psicose is limited by this, or at least a skilled person would consider these regulatory limitations. The amount of D-psicose claimed is arbitrary. In the absence of any improvement over D1, choosing an amount of D-psicose falling within the scope of claim 1 is a matter of routine for a skilled person. D1 discloses that the Reb X and carbohydrate sweetener can be present in any weight ratio, with carbohydrates in concentrations from about 100 ppm to about 140 000 ppm, making the weight ratio required in claim 1 an arbitrary choice.

In view of the above, the subject-matter of claim 1 of the main request does not involve an inventive step in view of D1 alone.