T 0238/04 23-03-2007

Summary of Facts and Submissions

I. The grant of European patent No. 0 768 325 in respect of European patent application No. 96 202 872.6, filed on 15 October 1996 and claiming the priority of 16 October 1995 of an earlier application filed in the European Patent Office (95 307 467), was announced on 30 May 2001 (Bulletin 2001/22). The patent was granted with seven claims, reading as follows:

FORMULA/TABLE/GRAPHIC

In this decision, any reference to passages in the patent in suit as granted will be given underlined in squared brackets, eg [Claim 1]. References in underlined italics concern passages in the application as originally filed, eg page 1, lines 5 to 10.

II. On 26, 27, 28 and 28 February 2002, respectively, four Notices of Opposition were filed, in each of which revocation of the patent in its entirety was requested. More particularly, each of Opponents 1 to 3 referred to Articles 100(a), 52(1) and 56 EPC and asserted that the subject-matter of the patent in suit did not involve an inventive step, Opponent 4 based its opposition on Article 100(a) EPC, in general. More particularly, it raised objections of lack of novelty and lack of inventive step under Articles 54 and 56 EPC, respectively. In order to support their respective objections under Article 100(a) EPC, the opponents cited altogether a total of 25 documents, including (numbered as in the decision under appeal):

D1: GB-A-1 039 663;

D2: US-A-3 486 013;

D3: US-A-3 606 903;

D5: EP-A-0 368 270;

D8: Polyurethane, Kunststoff-Handbuch 7, 3rd edit., Carl Hanser Verlag München, 1993, page 268;

D10: EP-A-0 097 458;

D11: Dr.-Ing. U. Knipp, "Herstellung von Großteilen aus Polyurethan-Schaumstoffen", Zechner & Hüthig Verlag Speyer, 1974, pages 5, 28 and 29;

D12: The ICI-Polyurethanes-Book, George Woods, 2nd edition, ICI Polyurethanes and John Wiley & Sons Chichester, 1990, pages 14 and 39;

D15: DE-A-43 09 691;

D16: US-A-5 196 476;

D21: The ICI-Polyurethanes-Book, George Woods, ICI Polyurethanes and John Wiley & Sons Chichester, 1988, pages 1 to 24; and

D22: US-A-5 013 766.

III. With a letter dated 30 September 2003, the Patent Proprietor, who had already requested that oral proceedings be arranged if the Opposition Division was of the opinion that the patent in suit could not be maintained (letter dated 2 August 2002, page 2), additionally filed four auxiliary requests.

IV. The oral proceedings were held before the Opposition Division on 2 December 2003.

V. In the decision announced at the end of the oral proceedings and issued in writing on 30 December 2003, the Opposition Division revoked the patent.

(1) Novelty was acknowledged, because, none of the documents cited in this respect contained a joint disclosure of a simple continuous process for blending different polyols in order to prepare a polyol composition in the manner defined in [Claim 1]. Thus, specific reference was made to D16 (No. 3a of the reasons in the decision under appeal):

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(2) The Opposition Division considered D11 as the closest piece of prior art, which disclosed blends of polyols (page 29, paragraph 6.2). In comparison with this prior art, the technical problem to be solved was seen in the provision of a continuous process for the production of polyol blends useful for the production of polyurethanes.

(3) Furthermore, the skilled person had been aware from D10 that basically two ways of carrying out the blending operation had been available, either batch blending or in-line blending (D10: page 1, lines 10 to 30). Moreover, he had been aware of the facts that the in-line blender would be a suitable means for continuously mixing liquid organic materials (D10: Claim 1, Figure 5) and that according to D16 an in-line mixer could be used for mixing a polyol with other ingredients including a further polyol (D16: column 23, lines 34 to 37, Example 3).

Therefore, it would have been a routine operation, which did not imply any inventive activity, to evaluate the in-line blending technology for mixing polyols, because there had been only one choice if a continuous process had been desired (No. 3b of the reasons).

(4) Consequently, it was decided that the subject-matter of Claim 1 of the Main Request did not involve an inventive step, and the Main Request was refused.

(5) These arguments were also held valid for Auxiliary Request 1, wherein the feature of [Claim 3] had been incorporated in Claim 1, because each polyol known from the cited documents had a specific hydroxy/hydroxyl value/number (which will be referred to herein below as "OHV") and a specific functionality which fell within the scope of the additional feature of Claim 1. Consequently, this Auxiliary Request was also refused for lack of inventive step (No. 4c of the reasons).

(6) The further Auxiliary Requests were found not to comply with Article 123(2) EPC. Thus, the feature "encompass hydroxy values in the range of from 200 to 700 and functionalities in the range of from 2.0 to 5.5" (in Auxiliary Requests 3 and 4) did not include all the features of [Claim 4] (section I, above), which had additionally contained the feature to the mandatory presence of at least one aromatic polyol, as confirmed by [page 2] (item 5a of the reasons).

(7) Furthermore, the Opposition Division stated that even if the Auxiliary Requests 2 to 4 had been considered to fulfil the requirements of Article 123(2) EPC, they could not have been considered as inventive for the same reasons as those given for the Main Request (item 7).

VI. On 12 February 2004, a Notice of Appeal was filed against this decision by the Patent Proprietor/?Appellant, who requested that the decision under appeal be set aside and the patent in suit be maintained. The prescribed fee was paid on the same date.

(1) In the Statement of Grounds of Appeal received on 7 April 2004, the Appellant argued that the assessment of inventive step in the decision under appeal was based on a combination of features from several prior art documents whilst there had been no hint of teaching to combine these features in this way.

With regard to D11, the Appellant argued that the claims were directed to "a very specific method of in-line blending namely one in which only a limited number of polyols are being used and in which the resulting blend is continuously discharged in a transporter tank", whereas D11 related to mixtures of polyols, and polyol mixtures could be obtained in many different ways.

The Appellant continued that there would be no need for storing the blend produced according to the patent in suit, which could rather be sent directly and continuously to a transporter tank, whilst, hitherto, there had apparently been a prejudice against the use of in-line blending of polyols.

Furthermore, there would be no teaching or hint in either of D11 and D10 to combine these documents. Although someone skilled in the art could have used in-line blending for preparing polyol blends, there was, in the Appellant's view, no reason why the skilled person would have done so in the expectation of some improvement or advantage.

D16 related to the preparation of polymer/polyol compositions. Any combination of a selected feature of D16 with a selected feature of D10 and/or D11 could only be done by applying hindsight.

(2) Moreover, the Appellant replaced Auxiliary Request 4 by a new version and disputed the reasons given in the decision under appeal for the refusal of the auxiliary requests.

VII. The arguments of the Appellant were disputed by Respondents/Opponents 1, 2 and 4, who requested that the appeal be dismissed, the decision under appeal be confirmed and the patent in suit be revoked in its entirety, respectively.

(1) Thus, Respondent/Opponent 1, in its letter dated 13 July 2004, referred, in particular, to continuous mixing processes for liquids other than polyols in D1 and D2 and put emphasis on the argument that neither document was restricted to certain liquids. Furthermore, D3 would have related to the process of Claim 1 with only the exception, that in D3 the mixture had not been fed to a transporter tank but to a mixing nozzle. Moreover, D5 would make it clear that, in accordance with D11 (chapter 6.2, lines 9 to 12), the blending of polyols could be carried out by the polyol producer (D5: page 2, column 1, lines 29 to 31). When the in-line blending of the polyols had been disconnected from the polyurethane production, this had, of course, required transportation. The skilled person would immediately have checked, how this had been done for other liquids, and would have found the solutions offered in D1 and D2.

According to Respondent 1, the same arguments were also valid for Auxiliary Request 1.

(2) Respondent/Opponent 2 referred in its letter, dated 23 July 2004, to its previous arguments and disputed that there had been a prejudice to use an in-line mixer for mixing polyols. It would be self-evident to the skilled person that the process of D10 could be used for polyols.

(3) In a letter dated 18 October 2004, Respondent/?Opponent 4 reiterated its previous arguments concerning its objections of lack of novelty on the basis of D16, supported the decision under appeal as regards the assessment of inventive step, referred additionally to its previous submissions in this respect, and also supported the reasons given in the decision under appeal for the refusal of the auxiliary requests, in particular with regard to Article 123(2) EPC. In summary, Respondent 4 took the view that the subject-matter of all the requests, including the new Auxiliary Request 4, did not meet the requirements of novelty and/or inventive step and that Auxiliary Requests 2 and 3 violated the provisions of Article 123(2) EPC.

VIII. With a letter dated and received on 23 February 2007, the Appellant withdrew all its pending requests and replaced them by a new Main Request and new first to sixth Auxiliary Requests. Moreover, it filed an experimental report describing the preparation of rigid and flexible polyurethane foams from different polyol mixtures and cited a further document:

D26: "Advances in POLYURETHANE TECHNOLOGY", J.M. Buist and H. Gudgeon (Edit.), MacLaren and Sons Ltd., London 1968, pages 190 and 191.

Furthermore, the Appellant formulated its view of the technical problem to be solved by the claimed subject-matter (page 1, last paragraph) as follows:

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IX. Oral proceedings were held before the Board on 23 March 2007.

(1) At the beginning of the oral proceedings, the Chairman summarised the relevant facts as appearing from the file and asked the parties for their requests.

(2) In reply to this question, the Appellant, on the one hand, maintained its requests as on file except for the first and second Auxiliary Requests (section VIII, above), both of which were withdrawn. The Respondents, on the other hand, requested that the appeal be dismissed, but did not object to the admission of the remaining requests of the Appellant to the proceedings.

Then, in the further course of the hearing, the third and fifth Auxiliary Requests (sections VIII, above, IX (8) and (11), below) were also withdrawn by the Appellant.

(3) The Main and fourth and sixth Auxiliary Requests, on which this decision is partly based, concerned the following subject-matter:

- Claim 1 of the Main Request read as follows:

"1. Method of preparing rigid polyols ready for transportation, wherein a polyol blend is prepared by withdrawing from their respective storage tanks a plurality of streams of different base polyols, continuously and simultaneously feeding said streams of base polyols in a predetermined ratio into a blender, and continuously discharging the resulting polyol blend into a transporter tank."

Each of the further Claims 2 to 7 appendant thereto was identical to its granted version (section I, above).

- In Claim 1 of the fourth Auxiliary Request, the following features had been added at the end of [Claim 1] (cf. section I, above): "wherein the different base polyols encompass hydroxyl values in the range of from 200 to 700 and functionalities in the range of from 2.0 to 5.5".

Moreover, [Claim 3] had been deleted and the further claims had been renumbered and adapted to these amendments. Thus, new Claim 3, derived from [Claim 4] (section I above), read as follows:

"3. Method as claimed in claim 1 or 2, wherein the different base polyols include at least one aromatic polyol."

- Claim 1 of the sixth Auxiliary Request differed from [Claim 1] by the following additional features added to the end of the claim: "wherein the different base polyols encompass hydroxyl values in the range of from 200 to 700; functionalities in the range of from 2.0 to 5.5; and include at least one aromatic polyol".

The further Claims 2 to 5 corresponded to [Claims 2 and 5 to 7] (section I, above), respectively.

(4) As a guidance for the further discussion of the case, the parties were given the following preliminary, provisional remarks to the wording of the claims:

"Arguments in support of a claim can be convincing only, insofar as they rely on mandatory features of this claim. Claim 1 of each of the requests relates to a method of preparing a blend of polyols ready for transportation.

This means, however, that the use of the product of the claimed method, or in other words, any step or measure beyond the step of discharging the polyol blend to a transporter tank, which has been the last feature in all of these claims, has no bearing on the claimed method.

Consequently, arguments referring to the use of the blends cannot apparently be convincing with regard to the claims at issue.".

(5) The discussion about the substantive issues started with those concerning the Main Request, to which the Respondents, who argued essentially along the same lines, objected under Articles 84 and 123(2) EPC.

In particular, the Respondents criticised the term "rigid polyol" as being vague and as having no definite, but only a relative meaning. More particularly, the term, of which a clear definition could not be found anywhere in the patent in suit, had only been mentioned once in paragraph [0001]. Furthermore, the Respondents pointed out that neither at the stage of grant nor later - until the Appellant's letter of 23 February 2007 - had any significance or importance been attributed at all to this term with regard to the subject-matter of the patent in suit.

Paragraph [0001] mentioned above had, according to the Respondents, addressed essentially the facts that a substantial number of different polyols having a range of characteristics such as functionality, OHV, nitrogen content, aromaticity and viscosity, was manufactured by polyol producers for the manufacture of polyurethane articles in general, and that these polyols had to be stored separately and thus required investment in a large number of storage vessels. The Respondents quoted from paragraph [0001] that, although the manufacturing operation could be simplified by producing a limited number of base polyol grades, from which a larger number of commercial grades could be prepared, the general problems related to their storage had not been overcome, but were, according to paragraph [0002], to be solved according to the patent in suit, in order to meet all the different requirements of the polyol customers for their polyurethane process and end products.

With regard to the sentence referring to "so-called rigid polyols which are used in the manufacture of rigid polyurethane foam ...", emphasis was put by the Respondents on the word "particularly" in that sentence, which, in their opinion, demonstrated that the above statements about the "number" and "characteristics" in paragraph [0001] referred to polyols in general [page 2, lines 4 to 9 and, in particular, lines 6 and 7].

Furthermore, the Respondents put emphasis on the fact that the remainder of the specification was completely silent about the types of polyols to be processed in accordance with the patent in suit. Even paragraph [0007], referring to the base polyols, which could preferably be used in the claimed method, did not provide any link between these particular base polyols and "rigid foams", nor did it mention, let alone define the term "rigid polyol". Nor did it provide any information about the preparation of such polyols.

In summary, the Respondents considered Claim 1 neither to be clear, nor to have a basis in the application.

(6) By contrast, the Appellant argued that the term "rigid polyol" was often used in this art, and that the skilled person was well-aware of its meaning. In support of this argument, the Appellant referred to D26, in particular to Table 6.1 and Figure 6.1. which were to show that it would be common general knowledge that, for the manufacture of rigid foams, rigid polyols having functionalities in the range of from 3 to 8 and molecular weights of between 300 and 1000 were used. The OHVs could be calculated from these values according to the formula which had been referred to by the Opponents during the opposition proceedings (cf. the letter of Opponent 4, dated 30 September 2003, page 4). These limitations should, however, not be taken in a purely literal sense, the important requirement would be that the polyol mixture, but not necessarily each base polyol, met the requirements of the rigid polyol, such as, in particular, an OHV of at least 200. This would be known by the skilled person. By contrast, for flexible foams, "flexible polyols" would be used having very high molecular weights, functionalities of from 2 to 3 and OHVs of below 180.

Moreover, the Appellant argued that the whole of paragraphs [0001] and [0002] was to be read together and that it would be evident therefrom that the storage problem concerned specifically rigid polyols, which like those as used in all the examples in the patent in suit complied with the above definition in D26. By contrast, paragraph [0007] had, according to the Appellant, nothing to do with the Main Request.

(7) One of the Respondents agreed that the term "rigid polyol" was often used, however without having a clear meaning ("unscharfe Bedeutung"). In order to illustrate this issue, the Respondents additionally referred to D22 disclosing a process for the preparation of rigid polyurethane foams which included the use of "one or more polyols having an hydroxyl functionality of from 2 to 3 and an hydroxyl number of from about 25 to about 115" (column 2, lines 10 to 15). This statement was, however, disputed by the Appellant with reference to the first part of the definition of that process additionally requiring the presence of "one or more polyols having an hydroxyl functionality of from 3 to 8 and an hydroxyl number of from about 300 to about 800" (D22: column 2, lines 7 to 9). In any case the minimum limit of the OHV of rigid polyols would be 180.

Finally, in the discussion about this point, reference was additionally made to D8, chapter 6.1.1, disclosing a different OHV range of from 350 to 650 for polyols usually used in the manufacture of rigid polyurethane foams. According to the Appellant, the range lay, however, within the broadest range disclosed in D26.

One of the Respondents additionally argued with respect to the latter document, that the calculation of the OHV from the functionalities and the molecular weights referred to by the Appellant (ie based on combinations of the functionality values 3 and 8 and molecular weights of 300 and 1000, respectively; section IX (6), above) resulted in still further limits of the OHV range, extending from 168 to 1500.

(8) At this stage of the proceedings, the parties did not wish to comment on the above issues any further and the debate about the Main Request was, therefore, closed in this respect. Moreover, the Appellant indicated that it would withdraw its third and fifth Auxiliary Requests, if the Main Request was refused on the grounds discussed before.

(9) The next point addressed in the hearing concerned the same "formal" aspects concerning the fourth Auxiliary Request (section IX (3), above). In particular, the Respondents argued that Claim 1 of this Auxiliary Request did not comply with Article 123(2) EPC. To this end, they referred not only to the decision under appeal (cf. section V (6), above), but also to the three characteristics of the base polyols as defined in [Claim 4] (section I, above) and in paragraph [0007], ie the OHV and functionality ranges and the presence of at least one aromatic polyol, and they argued that the original text of the application did not provide a basis for disconnecting these features from one another. However, no mention was made in Claim 1 of an aromatic polyol. Furthermore, they pointed out that [Claim 4] had been appendant to [Claim 3] (section I, above), wherein it had been required that the different base polyols were to encompass a wide range of OHVs and functionalities. However, contrary to this requirement, Claim 1 would rather include the possibility of combining different polyols, whereby each of them might have eg a OHV of 200 or slightly above and at the same time a functionality of 2.0 or slightly above. Moreover, reference was made to the deletion of [Claim 3].

(10) The Appellant disputed the above arguments of the Respondents and also the reasons in the decision under appeal in this respect, because the aromaticity of a polyol would have nothing to do with its OHV and its functionality, both of which would relate to the OH-groups, whilst aromaticity would not. This would even be confirmed by the first sentence of paragraph [0007], which did not refer to aromaticity but only to OHV and functionality. Moreover, the second sentence of this passage mentioning all three properties of preferred base polyols would not relate to one single embodiment. This could also be seen from the examples in the patent in suit, none of which included the use of an aromatic base polyol.

The Appellant additionally relied on two decisions, T 331/87 (OJ EPO 1991, 22) and T 582/91 of 11 November 1992 (not published in OJ EPO), to support its argument that in the present case (i) the combination of [Claim 1] and of two of the three features from [Claim 4] would be allowable, since the aromaticity of the base polyols would not be indispensable for the solution of the technical problem.

(11) After deliberation, the Board gave the decisions on the Main Request and on the fourth Auxiliary Request, both of which were refused. At this point, the Appellant confirmed that the third and fifth Auxiliary Requests were withdrawn (cf. section IX (8), above).

(12) With regard to the sixth Auxiliary Request (section IX (3), above), the Respondents referred again to the deletion of [Claim 3] to which [Claim 4], now incorporated in Claim 1, had been appendant. The Appellant, however, took the view that it would not be necessary additionally to put the features of [Claim 3] into Claim 1, because they would not limit the subject-matter of Claim 1.

This argument was disputed by the Respondents along the lines of their previous arguments concerning this point in the context of the fourth Auxiliary Request (section IX (9), above).

(13) In reply to this objection, the Appellant stated that Claim 1 of the sixth Auxiliary Request was based on a combination of [Claim 1] with the second sentence of paragraph [0007], rather than on the combination of [Claims 1 and 4]. More particularly, it stated that the first and second sentences of paragraph [0007] should be read separately and independently from one another.

(14) This view was criticised by the Respondents with a hint to the statements of the Appellant concerning the interpretation of paragraphs [0001] and [0002] (section IX (6), above, second paragraph). They further concluded from the Appellant's above statements that the new Claim 1 did not correspond to the purely reworded subject-matter of [Claim 4], but to [Claim 1] including significant amendments from the description. Such amendments would, however, be open to objections under Article 84 EPC, as established in many decisions.

On this basis, they then raised the question of the meaning of the term "encompass" in the claim. More particularly, it was not clear to them whether it meant that only one or all of the base polyols would have to fulfil at least one or all the requirements specified in the second sentence of paragraph [0007].

(15) The answer of the Appellant to this item, that all polyols referred to in Claim 1 had the OHV and functionality within the defined ranges and included aromatic base polyols, threw, however, in the Respondents' opinion, further doubts on the meaning of "encompass", because glycerol, which was evidently a polyol and was used in the examples of the patent in suit, would have a OHV of about 1800.

Hence, the Appellant supplemented its previous definition of polyols (see the last paragraph) by stating that the base polyols were not to be construed as encompassing the diols and triols, such as glycerol, as referred to in Claims 4 and 5 of this request/?[Claims 6 and 7] (sections IX (3) and I, above).

(16) The hearing was interrupted for deliberation of the Board. When it was resumed, the Appellant submitted a further, the seventh Auxiliary Request. Thereafter, the decision on the sixth Auxiliary Request was given, ie it was refused.

In the seventh Auxiliary Request, which contained only three claims, Claim 1 had got the following wording:

"1. Method of preparing a polyol blend ready for transportation, which comprises withdrawing from their respective storage tanks a plurality of streams of different base polyols, continuously and simultaneously feeding said streams of base polyols in a predetermined ratio into a blender, and continuously discharging the resulting polyol blend into a transporter tank wherein the different base polyols are selected to encompass a wide range of hydroxy values and functionalities and encompass hydroxyl values in the range of from 200 to 700; functionalities in the range of from 2.0 to 5.5; and include at least one aromatic polyol."

The dependent Claims 2 and 3 corresponded to [Claims 2 and 5] (section I, above), respectively.

(17) The Respondents neither objected to the admission of the additional seventh Auxiliary Request at the oral proceedings nor raised any objections under Articles 84 or 123 EPC. Nor did Respondent 4 wish to provide any arguments with regard to its previous novelty objection.

(18) The Appellant then presented its case with regard to inventive step. To this end, it argued against the reasons in the decision under appeal. Starting from D11 identified in the decision as the closest piece of prior art, the Appellant stated that the document had disclosed neither continuous mixing and discharging, nor rigid polyols having OHVs within a range of from 200 to 700. With respect to D11, the Appellant saw the technical problem underlying the claimed invention as already stated in its letter dated 23 February 2007 (section VIII, above).

The Appellant criticised the decision under appeal in that three documents (D11, D10 and D16) had been combined with each other allegedly contrary to case law. It would not, however, be obvious to combine the teaching of more than two documents.

Whilst admitting that in-line blending, in general, (cf. D10) and polyol blends (cf. D11) had been known "for ages", it argued that nobody had apparently realised before, that rigid polyols could be blended in this way, thereby achieving advantages. Thus, the patent in suit provided a method which would allow - with one mixing equipment - to blend without any difficulties any desired, large or even very small, quantities of polyols, thereby dispensing with the need for storage of the obtained blends and the efforts and costs of cleaning the machinery, used before in batch-wise blending of, in particular, small quantities. On the basis of the paragraph bridging pages 1 and 2 of D10, the Appellant saw the skilled person even as being taught away by D10, because it would clearly refer to in-line blending, when large quantities of blended product were to be produced. As demonstrated by the drawings in D1 and D10, these documents were directed to the mixing of large quantities of liquids other than polyols. Nor did D10, according to the Appellant, teach to discharge the product directly to a transporter tank.

Moreover, prior to the patent in suit, the choice of the mixing equipment had, according to the Appellant, to be adapted to the quantity and to the ratios of the liquids to be blended. To this end, the Appellant additionally referred to D21, pages 20 and 21: "Uniform and reproducible mixing" "Static mixers".

Even with the knowledge of the cited documents, no one would have expected any improvement or advantage by the use of an in-line blender.

Furthermore, the Appellant went into the contents of D16 in great detail, in particular with regard to the method of preparing the polymer/polyol composition described in its examples.

(19) The Respondents did not rely on D16 anymore, but, besides D11, referred, instead, to D1, D2, D3, D8, D10, D12 and D15. Since D8, D11 and D12 were text books, they were, according to the Respondents, illustrating the common general knowledge in this sector of the art.

Thus, according to D8, D11 and D12, it had been the common general knowledge that (i) polyol blends/?mixtures were provided by the polyol producers, which fact made transportation of the blends in some sort of tank or pipe necessary, and (ii) that such blends were used in the production of polyurethane foams, respectively. Moreover, the disclosure of D15 would confirm this knowledge (as shown by the compositions of each component A in its Examples 2 to 5).

The further documents D1 (viz. its drawing), D3 and D10 (in particular its Figure 1) showed, according to the Respondents, furthermore, that the continuous mixing of liquid organic materials and the direct feeding of the mixture, thus obtained, to transporter tanks had been state of the art. In their opinion, the skilled person, faced with the problem of mixing polyols, would have considered any document dealing with the blending of liquid materials, irrespective of the particular nature of the materials, as long as they were compatible. The compatibility depended, according to the Respondents, on the ethylene oxide/propylene oxide ratio in the polyols.

In any case, the skilled person would have learnt from the above documents that the storage problem could be solved by using in-line blending. Nor could any prejudice be derived from those documents against this form of blending, even when quantities of the raw materials deviating from about 1:1 were to be used as shown eg in D3, Figure 1, with regard to the "resin" (ie polyol) and castor oil (also a polyol).

Furthermore in view of the lack of any further explanation of the kind of the "transporter tank" and of the "blender" and of the respective sizes of these devices in the specification (let alone in Claim 1) and with regard to the Appellant's arguments relating to the preparation of even only small quantities, the Respondents raised the question of what the word "continuously" in Claim 1 meant.

(20) When the parties indicated that they intended no further contributions, the debate was closed.

X. The Appellant requested that the decision under appeal be set aside and that the patent be maintained on the basis of the Main Request, filed on 23 February 2007, or, in the alternative, of the one of the fourth or sixth Auxiliary Requests, both filed on 23 February 2007, or of the seventh Auxiliary Request, filed at the oral proceedings.

The Respondents requested that the appeal be dismissed.