Key points
- "The invention relates to an antibody specific for free symmetrical dimethylarginine (SDMA) in a biological sample (claim 1),"
- The Board, under inventive step: "If the claimed antibody could not have been obtained by standard methods, its preparation could have been an invention in itself. However, the claimed antibody needs to be inventive on its own: it cannot be rendered inventive by means of any arguable difficulty in obtaining it."
- Compare T 595/95: "A product which can be envisaged as such with all the characteristics determining its identity including its properties in use, i.e. an otherwise obvious entity, may become non-obvious and claimable as such, if there is no known way or applicable (analogy) method in the art to make it and the claimed methods for its preparation are the first to achieve this and do so in an inventive manner" (add, after G 1/23: and the product was not commerically available)
- " The parties also referred to the expectation of success in the context of the claimed antibody. However, whether there was a reasonable expectation of obtaining the claimed antibody has no bearing on its inventiveness. It may at best have relevance in the context of its preparation."
- "The problem underlying the claimed invention [was] providing an improved method for evaluating renal function, achieving lower costs, improved time effectiveness and increased reliability."
- "The respondent [proprietor] did not dispute that the link between SDMA and renal function was known from D8. "
- "Claim 1 merely specifies the pre-eminent properties of an antibody for an SDMA assay: total specificity and direct application on serum. An assay relying on an antibody with those properties would have been an obvious improvement to a skilled person. This is the case regardless of whether an antibody with those properties was within the reach of a skilled person at the filing date: what is relevant is whether the features in claim 1 are obvious."
EPO
The link to the decision is provided after the jump.
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