T 2199/22 - List of diseases and sufficiency

Key points

• "Claim 1 of auxiliary request 11 relates to a pharmaceutical or nutraceutical product comprising MK-7, administered at a dosage of 1 to 10 myg/day, with n-3 PUFA in the form of a marine oil, administered at a dosage of 5 g/day, for preventing or treating cardiovascular, bone, or cartilage diseases or disorders in both humans and animals. Claim 1 is thus drafted as [a] purpose-related product claim pursuant to Article 54(5) EPC."
•  For the requirement of sufficiency of disclosure to be met in the case of a claim pursuant to Article 54(5) EPC, the application as filed, when read by a person skilled in the art having the common general knowledge in mind, must establish the functional technical link between the claimed product and the claimed specific use within the meaning of Article 54(5) EPC, namely the prevention or treatment of at least one of cardiovascular-, bone- and cartilage-related diseases or disorders in humans and animals"
• " While the disclosure and evidence in the application as filed [...] may suggest a potential health benefit in terms of prophylaxis or prevention after a longer period of treatment for certain physical conditions, there is no evidence that the claimed combination affects the full range of cardiovascular, bone, and cartilage-related diseases or disorders, such as bone cancer."
• The claim does not recite bone cancer.
• The decision seems remarkable because most often, a long list of diseases to be treated is no problem; even less frequently is insufficiency found based on a subtype of disease that is not explicitly recited in the claims.  
• "The board concludes that the skilled person would not have considered that the claimed product achieves prevention or treatment of cardiovascular, bone, and cartilage-related diseases or disorders over the whole scope of the claim."
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EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t222199eu1