Zusammenfassung von EPC2000 Art 056 für die Entscheidung T1349/19 vom 13.09.2022

In T 1349/19 the objective technical problem was the provision of an alternative vegetable-derived fat composition which could mimic the fat composition of human milk and which could be produced in a simple and cost-effective manner. It was not contested that this problem had been solved by the provision of the claimed composition. In order to show that the claimed solution to the underlying problem did not involve an inventive step, the appellant (opponent 3) relied primarily on D14. In the appellant's opinion, in order to provide a composition better suited to replace human milk, the skilled person would have increased the amount of C8:0 and C10:0 fatty acids in the fat blend of D19. They would have considered medium chain triglyceride oil (MCT oil) as the best source of C8:0 and C10:0 fatty acids. Consequently, they would have included 7% of the MCT oil mentioned in the patent to achieve a content of C8:0 and C10:0 fatty acids within the claimed ranges. The appellant went on to contend that the skilled person would also have been inclined to (a) reduce the randomised palm olein content to allow for the added 7% MCT oil; they would have also reduced the amount of palm olein, rather than that of soybean, sunflower and palm kernel oil, and (b) to replace 4% of the OPO-rich fat with 3% high oleic sunflower and 1% flaxseed oil. The appellant acknowledged that, starting from D19, several steps had to be taken to arrive at the claimed composition. However, in its opinion, these steps were "interconnected such that a change in one will have an influence on one or more of the other steps". This meant that only two obvious modifications were required: the replacement of some of the palm olein with MCT oil and the replacement of some of the OPO-rich fat with high oleic sunflower oil and flaxseed oil. The board was not convinced and found a lack of incentive in the prior art to perform the steps suggested by the appellant. The appellant further argued that, starting from D19, the skilled person was "likely to combine the teaching of D5, D9, D11, D14, D22 and D23 (to account for the known variation in human milk fat content) and thus arrive at a range for the amount of each fatty acid in human milk". In its opinion, a broad range defining possible amounts of each fatty acid could be created, combining the lowest and highest amounts of the fatty acids observed in the various milks disclosed in these documents. It then contended that, since the ranges in claim 1 were encompassed in, or at least overlapped with, these broadly defined ranges, the claimed composition was the result of a mere juxtaposition of obvious features selected by "cherry-picking" from the prior art. The board concluded that the appellant's arguments involved a convoluted set of sequential steps conceived starting from the compositions defined in claim 1 and working backwards, in an attempt to bridge the considerable gap with the composition described in D19. Since these steps were not suggested by the prior art, the board held they could only be taken by exercising hindsight.