T 0564/23 - A non-obvious alternative (fermentation of fruit juice)

Key points

• "The patent is directed to a process for the preparation of a concentrated liquid foodstuff having a low alcohol content"
• "Claim 1 of the patent is directed to a process in which a mixture of a juice concentrate and a carbohydrate with a yeast is subjected to fermentation to obtain a concentrated liquid foodstuff with an alcohol content lower than 15 g/kg of concentrated liquid foodstuff."
• "the parties agreed that the total acidity of at least 25 g/L is not disclosed in D1. Therefore, the total acidity is the distinguishing feature of claim 1." 
• "The parties disagreed as to whether this difference causes a technical effect. The [proprietor] referred to the patent, in particular paragraphs [0068] to [0076] and Figures 1 to 3, which allegedly all showed that an improvement in flavour occurred."
• The Board:  "there is no credible evidence demonstrating that the distinguishing feature causes an improvement in terms of flavour or desired aromatic components"
• I wonder if 'better taste' would be a technical effect (in general), but that is not relevant for the present case.
• "Accordingly, as the opposition division correctly assessed, the problem to be solved is to provide an alternative process of preparing a concentrated liquid foodstuff."
• The Board finds the claim to be non-obvious: "The skilled person starting from the examples of D1 would have realised that the grape sweet musts used in these examples already have the required, preferred pH. As the respondent explained, these compositions have a pH value of about 2.9. Therefore, the skilled person would have had no incentive to adjust the pH value. They would not have added further acid, such as citric acid, to the compositions of the examples."
•   It follows from this that in view of the closest prior art D1 alone, the solution provided by the subject-matter of claim 1 constitutes a non-obvious alternative."
• " the examples of D1 provide a consistent teaching involving several process steps to obtain beverages having an alcohol content that is lower than 15 g/kg of beverage. In view of this, the skilled person would have had no motivation to inhibit the fermentation process by adding an acid, let alone to prematurely stop the fermentation process. The reason for this is that D1 already provides teaching that would lead them to the desired product. It would not have been obvious to the skilled person to depart from the teaching of D1 and ferment a juice with high total acidity under the conditions specified in D1."
• " The board fails to see the relevance of the cited decision [T 641/00, Comvik]  for the invention under scrutiny. Total acidity is not a non-technical feature. It is a technical feature that typically defines and characterises fruit juices, as can be seen from the prior art cited in these proceedings. In the case in hand, the total acidity qualifies and restricts the fruit juices used in the process of the patent in suit. Consequently, it contributes to the technical character of the fermented mixture." 
  
  
• There are some interesting further comments on inventive step.

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t230564eu1