Zusammenfassung von EPC2000 Art 056 für die Entscheidung T1571/19 vom 09.11.2022

In T 1571/19 the appellant (opponent) argued that the skilled person, starting from D5 (the closest prior art) and faced with the underlying problem, would have taken into account the teaching of D3, which, like the opposed patent, related to a feed composition (for fish) for treating inflammatory symptoms in the heart and the liver caused by HSMI, a viral disease. The teaching of D3 was limited to the treatment of HSMI. However, the appellant argued the pathology and the symptoms of CMS and HSMI were similar. Therefore, the skilled person would have reasonably expected the composition of D3 to be beneficial in the treatment of CMS. The board was not persuaded by these arguments. D5 showed that no therapy was known for treating and preventing diseases caused by PMCV in fish at the time of priority. Furthermore, it showed that the field of clinical nutrition of salmon was still in its infancy and that the therapeutic utility of feed compositions for fish could only be speculated upon. At the time of priority the skilled person could, at most, have had a tenuous hope that a fish feed composition for treating the claimed diseases would be developed in the future. The skilled person starting from D5 would barely have considered the teaching of D3. Even if they had, they would not have considered the idea of using the composition of D3 to treat and prevent diseases caused by PMCV, in particular CMS, to have a reasonable expectation of success. Therefore, they would not have endeavoured to test the utility of this composition for these therapeutic uses. The appellant selected D5 as the closest prior art, the "most promising springboard" towards the claimed invention. Nonetheless, the board considered this springboard too short to allow the skilled person to reach out to D3 and to overcome the considerable gap separating the closest prior art from the subject-matter defined in claim 1. It concluded that the subject-matter of claim 1, as well as that of the following claims, which were narrower in scope, involved an inventive step (Art. 56 EPC).