T 1881/06 13-11-2008

1. The appeal is admissible.

2. Main request, first to fifth and twelfth to sixteenth auxiliary requests - clarity:

2.1 Claim 1 of these requests has been inter alia amended by the addition of the feature "said casing being packed". According to the decision of the Enlarged Board of Appeal G 9/91 (OJ EPO, 1993, 408; see point 19) such an amendment is to be fully examined as to its compatibility with the requirements of the EPC.

2.2 According to the established case law, Article 84 EPC 1973 has to be interpreted as meaning not only that a claim must be comprehensible from a technical point of view, but also that it must define the object of the invention clearly, that is, indicate all the essential features thereof, i.e. all features which are necessary for solving the technical problem with which the patent is concerned.

2.3 The introductory part of the description sets out the problems associated with the necessity of having a certain humidity degree in the collagen casings before stuffing. In paragraph [0028] it is stated "Due to the previous reasons there is a need in the market of a non-edible collagen casing which can be provided by the manufacturer with the correct moisture amount to avoid additional treatments before stuffing, which can be stored for a large time period and overcomes all the mentioned problems".

Reference is also made to paragraph [0055] of the patent specification dealing with examples of the invention stating that "Immediately after humidification the sticks were packed in a plastic bag under protective gas (nitrogen/ carbon dioxide after removal of oxygen" (emphasis added).

In the Board's judgement the above object of the invention can only be achieved by ready-to-stuff non-edible collagen casings which are packed under vacuum or under protective gas. It is precisely this feature that is missing from the present claims 1 which therefore do not meet the requirement of Article 84 EPC 1973 first sentence, since they do not define the claimed subject-matter by reference to all its essential features.

2.4 The Respondent submitted that a skilled person would understand, when reading the claim that not any way of packaging would be suitable, for example wrapping the casings into paper would obviously not achieve the expected result. Thus a watertight packaging would be implicit. However, vacuum packaging or packaging under protective gas would only be required in case it is intended to store the casings for a long time.

2.5 The Board is unable to accept such reasoning since there is no indication in the patent specification that the casings might be used without substantial delay, so that packing under vacuum or protective gas can be omitted. On the contrary, the patent specification only refers to extended storage periods, as indicated in paragraph [0036]: "In the development of the present invention many factors were taken into account, as ready-to-stuff casings would have to fulfill the following requirements: compliance with the legal regulations … shelf life of the casing at least a year without significant change of properties…"

Accordingly, the main request, the first to fifth and twelfth to sixteenth auxiliary requests must fail.

3. Sixth and seventeenth auxiliary requests - inventive step:

3.1 The contested patent refers to non-edible collagen casings. In paragraph [0006] it is stated "Collagen casings may be edible or non-edible, the distinction being that non-edible casings are of higher diameter and they are normally peeled before the sausage encased therein is consumed. These casings are, normally, of a thicker wall than the edible ones and are not eaten because of their unpleasant mouthfeel."

According to the Appellant, there is an overlap between edible and non-edible collagen casings at least when considering casings of smaller diameters.

The Respondent submitted that non-edible collagen casings differ also from the edible ones in that they need a high moisture content of 27% or more to be ready-to-stuff. However, longer storage periods in the wet state are prohibited because of mold development. Therefore, non-edible casings are usually delivered to the meat-packer in a dry state (i.e. with a water content of 25% or less) and have to be soaked to be ready for use, whereas edible collagen casings can be stuffed in their dry state.

3.2 D1 discloses a ready-to-stuff wet (e.g. 50 to 90% of moisture content) edible collagen casing, which may have a diameter up to 32 mm (Table 6, first position). Thus, the collagen casing of D1 due to its diameter and its high moisture content cannot be distinguished from a non-edible collagen casing of smaller diameter that is soaked in water / brine prior to stuffing so as to present a higher moisture content. Thus the term "non-edible" in claim 1 provides no technical feature that clearly distinguishes over D1.

On page 3, second paragraph of D1, it is stated "by wet condition we mean that the casing has a high water content compared with conventional dried collagen casings… [which] have water content in the region 15 to 25%. The wet collagen casing of the present invention may have a water content of 50 to 90%…"

Thus, although the invention according to D1 contemplates a water content of 50 to 90%, casings with a water content exceeding 25% (since wet) are not excluded.

Moreover, on page 4 third paragraph of D1 it is indicated that salt e.g. sodium chloride is "present in an amount of 5 to 15% of the total weight".

The casing is treated in a salt solution comprising 10 to 25% by weight of salt preferably sodium chloride (page 6, end of third paragraph).

In the fourth paragraph of page 3 it is stated "… in a preferred embodiment the collagen casing is packed in its wet state (…) but not surrounded by liquid. For example the wet casing may be packed within a hermetically sealed pouch formed of … a plastics coated foil.

3.3 Thus the casings of claim 1 of the sixth and seventeenth auxiliary requests differ from the casing of D1 in that the moisture amount is between 27 and 49% and that they are vacuum packed or packed under protective gas.

D1 specifically refers to a water content of 50%. It is purely a matter of routine experimentation for a skilled person to determine water contents at the limit of the preferred range, i.e. casings with a water content of slightly less than 50%, e.g. 49%, all the more because claim 1 of D1 refers to a casing packed in its wet state and according to the description "wet" means a water content of above 25%, so that water contents of 26 to 49% although not preferred are encompassed by the subject-matter of claim 1 of D1.

3.4 The problem solved by packaging the casings under vacuum or under protective gas may be seen in avoiding mold development during storing in spite of the high moisture content of the ready-to-stuff non-edible collagen casings and thus in improving the shelf life of the casings.

In D1 it is stated, page 3, lines 21 to 23: "the wet casing may be packed with a hermetically sealed pouch formed of a conventional material such as a plastics coated foil."

Thus D1 teaches to hermetically pack high moisture collagen casings and packing under vacuum or under protective gas is a commonly used technique in the food industry. Finally, packing collagen casings of high moisture content under protective gas in order to avoid mold formation and enhance shelf live is already taught by D2 (see page 1, lines 41 to 45, 52 and 53).

The Respondent submitted that there is no hint in the conventional methods that would prompt the skilled person to consider soaking the non-edible casings at the manufacturer's end prior to packing and sending them to the meat packer.

However such methods are disclosed in D1 and D2 for casings which by reason of their size and high moisture content can also be used as non-edible ones.

He further alleged that there was a technical prejudice against storing collagen casings having a high moisture content and referred to documents A and D.

However, document A states "It is possible to dry casings that have not been used and use them again after repeated soaking in the saturated solution" and document D specifies "Casings not used that were soaked should be drained free of water, placed in a plastic bag, and stored in a cool room. These casings should be used first at the next stuffing." Thus, none of these documents clearly excludes the possibility of storing wet casings under predetermined conditions.

Furthermore, D1 and D2 relate to collagen casings of high moisture content. The water content is of 50 to 90% in D1 (abstract) and of 40% or more in D2 (see page 1, lines 52 and 53) wherein it is further stated that the casings can be stored for many months (page 3, lines 3 and 4) by packing them under protective gas. Accordingly the Respondent's allegations are traversed.

3.5 Consequently, the subject-matter of claim 1 of the sixth and seventeenth auxiliary requests does not involve an inventive step.

3.6 The subject-matter of claim 1 of the seventh to eleventh and of the eighteenth to twenty third auxiliary requests does not differ in substance from the subject-matter of claim 1 of the sixth and seventeenth auxiliary requests. Accordingly, the above reasoning applies mutatis mutandis to the subject-matter of claim 1 of these requests. This point has not been challenged by the parties.

It follows that the subject-matter of claim 1 of the seventh to eleventh and of the eighteenth to twenty third auxiliary requests does not involve an inventive step either.