T 0384/25 - No need to adapt the description (this time)

Key points

• Board 3.3.09 on when to adapt the description, after G 1/25 (which was referred by Board 3.3.02).
• The Board finds that AR-5 is allowable. "Auxiliary request 5 only includes some of the product claims disclosed in the set of the granted claims." ... "the patent as granted includes claims directed to medical uses. "
• "paragraph [0001] sets out that the invention relates to whey protein micelles for use in the treatment or prevention of a condition linked to a reduced concentration of plasma amino acids in a patient. "
• "The claims of auxiliary request 5 are directed to a product, which is defined by specified amounts of whey protein micelles, proteins including whey protein isolate or hydrolysed milk protein, lipids, carbohydrates and fibres."
• "A liquid meal replacement comprising whey protein micelles further comprising whey protein isolates, hydrolyzed milk proteins or any combination thereof, wherein the whey protein micelles are present in said meal replacement in an amount of at least 20 wt%. [sic] of total dry weight, comprising 25-50 wt% proteins, 10-15 wt% lipids, 25-50 wt% carbohydrates and 5-10 wt% fibers of total dry weight."
• "3.9 In the current case, the board could not identify that maintaining paragraphs [0001], [0012], [0013], [0022], [0023] and [0032] of the patent as granted unamended causes any inconsistency in the sense described above [i.e., G1/25] between the amended claims and the description. "
• "The claims of auxiliary request 5 leave no doubt, let alone a real doubt, as to what the claims mean and what falls within the claimed subject-matter. 
• "While the unamended description encompasses technical teachings and embodiments regarding medical uses, this as such is not to be considered an inconsistency within the meaning of G 1/25 and does not have to be removed from the description."
• The Board does not quote the description paragraphs concerned. I quote them below.  It seems that claim 1 of AR-5 is one of the granted independent claims, without further amendments. 
• [0001] The present invention relates to whey protein micelles for use in the treatment and/or prevention of a condition linked to a reduced concentration of plasma amino acids in a patient. A further aspect of the invention is a meal replacement comprising whey protein micelles.
• [0012] Accordingly, the present invention provides in a first aspect whey protein micelles for use in the treatment and/or prevention of a condition linked to a reduced concentration of plasma amino acids in a patient in need thereof, wherein the treatment or prevention does not include an additional exercise regimen, wherein the condition is muscle atrophy or sarcopenia, wherein the whey protein micelles are administered to the patient in combination with a meal, wherein the meal comprises whey protein isolates, hydrolysed milk proteins or any combination thereof; and wherein the whey protein micelles are administered to the patient in a daily dose of at least 20 g dry weight.
• [0013] That treatment or prevention does not require an additional exercise regimen to be effective. Hence, the treatment or prevention does not include an additional exercise regimen.
• [0022] The present invention pertains to whey protein micelles for use in the treatment and/or prevention of a condition linked to a reduced concentration of plasma amino acids in a patient, wherein the condition is linked to a loss of muscle mass and/or strength. The hyper-aminoacidemia for a prolonged postprandial period of time provided by the inventive use of the whey protein micelles is most favourable for maximally stimulating muscle protein synthesis and therefore maintaining or even enhancing muscle mass.
• [0023] According to the present invention, the condition is muscle atrophy or sarcopenia. Both medical conditions are characterized by a loss of muscle mass and strength. The present invention is best adapted to providing a nutritional solution to patients suffering from either of those conditions, to reduce or stop loss of muscle mass and/or ultimately to build up again muscle mass and strength.
  
• [0032] According to the invention, the whey protein micelles for use according to the invention are administered to the patient in combination with a meal. Most meals comprise proteins from a milk, plant and/or animal source and hence upon consumption lead to a postprandial aminoacidemia increase, i.e. an elevated concentration of amino acids in the plasma of the consumer. It is now an advantage, to combine the administration of whey protein micelles in combination with such a meal. Thereby, the postprandial plasma amino acid peak resulting from the proteins present in the meal adds up to the postprandial amino acid peak resulting from the whey protein micelles which are delayed by ca. 30 min in respect to the first amino acid peak. Thereby, the overall resulting hyper-aminoacidemia is extended and prolonged in time. This in return is most favourable for maximally stimulating muscle protein synthesis, reducing muscle protein breakdown and therefore maintaining or even enhancing muscle mass.
• 
  

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t250384eu1