T 0356/22 - Counting to two for novelty and inventive step

Key points

• D1 teaches in claims 1 - 4 four different compounds and teaches in claim 22 a dosage form comprising one or more of these four compounds.  
• "D1 thus discloses, in one alternative of e.g. claim 22, pomalidomide dosage forms. The [proprietor] suggested that a single selection may be acceptable for the purposes of assessing novelty but not for inventive step, such that no pomalidomide dosage form would be disclosed in D1. The Board does not [concur]. The same definition of the prior art under Article 54(2) EPC and the same disclosure test apply in both cases. The Board emphasises that pomalidomide does not simply notionally fall within the scope of D1, but is one of only four active ingredients recited and tested therein."
• In other words, one selection constitutes no distinguishing feature. 
• The claims are held to be obvious, and the patent is revoked.

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t220356eu1