Abstract on Article 069 EPC for the decision T0638/24 of 19.03.2026

In T 638/24 the appeal was filed by the patent proprietor against the opposition division's decision revoking the European patent.

Claim 1 of the granted patent (main request) read as follows: "A process for the production of a refined oil having a reduced 3-MCPD ester and/or glycidyl ester content characterized in that it comprises subjecting an oil to the following steps, in order: (a) a bleaching step, (b) a deodorization step, and (c) a final bleaching step with activated bleaching clay, and (d) a final deodorization step is carried out at least 40°C lower than deodorization step (b) and the final deodorization step (d) is carried out at a temperature less than 180°C."

The appellant contested the opposition division's finding that this process lacked novelty over D1. In particular, based on paragraph 0044] of the description of the opposed patent, the appellant argued that the wording "having reduced 3-MCPD ester and/or glycidyl ester content" required the process to result in a refined oil having a 3-MCPD ester and/or glycidyl ester content which was lower than that found in an oil subjected to standard refining processes.

The board did not find this argument persuasive. Claim 1 defined neither a "standard" refining process nor the amount of esters found in oils refined by these processes. Furthermore, there was no evidence that certain refining processes were considered "standard" according to common general knowledge at the filing date. Moreover, the ester content in a refined oil depended on the type of oil used, its origin, the extraction method and the conditions implemented during refinement. For these reasons, the board found that the purported reference to an undefined refined oil, allegedly obtained by an undefined "standard" process, was not suitable to distinguish the claimed invention from the prior art.

The board observed that the reference to "standard refining (i.e. standard degumming, bleaching and deodorization)" in paragraph [0044] of the description did not provide further guidance on how these refining methods should be carried out. There was no evidence that specific standardised methods and working conditions for carrying them out were part of the common general knowledge at the filing date either. Thus, this passage could not be relied upon to limit the scope of claim 1. G 1/24 could not be invoked to construe a claim relying on an unspecified and unqualified definition. The board concluded that, reading claim 1 and consulting the description, taking into account the skilled person's perspective, it was clear that what was claimed was a process which reduced the content of 3-MCPD and/or glycidyl esters in an oil which contained them. Furthermore, the process included the specified steps, in the given order.

On the basis of this claim construction, the board held that claim 1 of the main request lacked novelty over D1.