Quick Navigation

 

Case Law of the Boards of Appeal

 
 
3.5. Improvement of a production process for a known product

With a prior art not directed to the same purpose as starting point, any attempt to establish a logical chain of thought which could lead to the claimed invention, inevitably gets stuck from the outset. In particular, where the background to the invention lies in difficulties encountered in known processes for preparing known compounds (see above under point 3.3 "Similarity of the technical problem"). Where the invention concerned improving a process to manufacture a known chemical compound, then the closest prior art was confined to documents describing that compound and its manufacture. Comparison with these alone would show whether an improvement had been achieved which could thus be taken into account in formulating the problem the invention sought to solve (T 641/89, T 961/96, T 713/97, T 948/01, T 833/02, T 339/03). In the case of inventions concerning a special process for use with a particular chemical substance having necessarily specific characteristics, determining the closest prior art must involve, above all, considering only those documents which describe a generically corresponding process for using precisely this particular chemical substance with its specific characteristics (T 1285/01, T 354/03, T 1652/08). This accurately and objectively reflects the actual situation in which the skilled person found himself on the priority date of the contested patent (T 793/97).

The above considerations regarding the closest prior art also apply to production processes for subject-matter other than a chemical compound. In T 325/97 the patent related to a method for manufacturing a device for controlled delivery of nicotine from an adhesive reservoir. In T 373/94 the board also applied the principles and conclusions laid down in T 641/89 where the invention related to the improvement of a manufacturing process for prefilled plastic syringes.