Zusammenfassung von EPC2000 Art 056 für die Entscheidung T1518/20 vom 16.01.2023

In T 1518/20 the board found that starting from D1 as the closest prior art, a skilled person seeking to provide a mere alternative surface-crosslinking process for superabsorbent polymers (SAPs) exhibiting good CRC, AUP, SRC and gel strength would have applied the teaching of D11 to the polymer synthesis process found in the examples of D1, and would have had a reasonable expectation of succeeding in arriving at SAP materials with (at least) comparable properties. The respondent argued that D11 gave no pointer that would cause a skilled person to select the heating conditions stipulated by claim, citing T 588/93 in support of the argument that some kind of a pointer was needed which would prompt a skilled person to apply the relevant teaching from the prior art. In the case in hand three selections from three ranges had to be made in D11 (to arrive at the heating conditions in claim 1). The board held, however, that for providing an alternative method, no particular pointer from the prior art was needed to combine the teaching of secondary sources of information with that of the closest prior art. In such a scenario, in the absence of any counter-indicators that would provide teaching leading away from applying the relevant disclosure in order to modify the solution proposed in the closest prior art, a skilled person would apply such teaching rather than being conceptually and notionally confined to the disclosure of the provided examples. The case at hand also differed from that underlying T 588/93, in which the (closest) prior art adduced contained teaching leading away from modifying a feature characterised in this teaching as being essential. In the case at hand, however, no such constellation was apparent. The board concluded that applying the teaching of D11, a skilled person would arrive at the subject-matter of claim 1 in an obvious way. Therefore, the subject-matter of claim 1 lacked an inventive step and did not meet the requirement of Art. 56 EPC. The first and second auxiliary requests were likewise found not to involve an inventive step. The third auxiliary request was not taken into account (Art. 13(2) RPBA 2020).