T 1085/13 (Amorphous Lercanidipine Hydrochloride / Recordati) of 09.11.2018

European Case Law Identifier: ECLI:EP:BA:2018:T108513.20181109
Date of decision: 9 November 2018
Case number: T 1085/13
Petition for review of: -
Application number: 06723128.2
IPC class: A61K 31/435 C07D 211/90 A61P 9/12
Language of proceedings: English
Distribution: Distributed to board chairmen and members (B)
Download: Decision in English
OJ versions: No OJ links found
Other decisions for this case: -
Abstracts for this decision: -
Application title: AMORPHOUS LERCANIDIPINE HYDROCHLORIDE
Applicant name: Recordati Ireland Limited
RECORDATI INDUSTRIA CHIMICA E FARMACEUTICA S.p.a.
Opponent name: -
Board: 3.3.02
Headnote: -
Relevant legal provisions: European Patent Convention Art 52(1)European Patent Convention Art 54 European Patent Convention Art 56
Keywords: Novelty - (yes)
Inventive step - (yes)
Catchword: A claim defining a compound as having a certain purity lacks novelty over a prior-art disclosure describing the same compound only if the prior art discloses the claimed purity at least implicitly, for example by way of a method for preparing said compound, the method inevitably resulting in the purity as claimed.
Such a claim, however, does not lack novelty if the disclosure of the prior art needs to be supplemented, for example by suitable (further) purification methods allowing the skilled person to arrive at the claimed purity.
The question of whether such (further) purification methods for the prior-art compound are within the common general knowledge of those skilled in the art and, if applied, would result in the claimed purity, is not relevant to novelty, but is rather a matter to be considered in the assessment of inventive step (reasons, 3.7, 3.8).
Cited cases: G 0002/88 G 0002/10 T 0296/87 T 0990/96 T 0728/98 T 1523/07 T 2522/10 T 1383/12 T 1723/12 T 0049/13 T 0648/13 T 0572/14 T 2267/14 T 1890/15
Citing cases: T 0492/14 T 1914/15 T 0474/17 T 0853/17 T 0043/18 T 0552/18 T 0454/19 T 1245/19 T 1688/20 T 1756/21 T 2052/22

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division with the order to grant a patent with the following claims and a description to be adapted thereto:

Claims 1 to 3 of the main request filed during the oral proceedings of 9 November 2018.