T 0012/81 (Diastereomers) of 09.02.1982

1. In the case of one of a number of chemical substances described by its structural formula in a prior publication, that substance's particular stereospecific configuration (threo form) - though not explicitly mentioned - is anticipated if it proves to be the inevitable but undetected result of one of a number of processes adequately described in the prior publication by indication of the starting compound and the process. In such cases, novelty by selection cannot be claimed, since none of the possible combinations of all the listed starting compounds and process variants introduce a new element - indispensable for substance selection - that would result in a true and not just "identical" modification of the starting substances.

2. Rule 86 (3) EPC, which is designed to prevent the proceedings before the European Patent Office becoming unduly prolonged can also be applied in appeal proceedings (Rule 66 (1)). If, shortly before the scheduled oral proceedings, the appellant files anew a claim that had been abandoned right at the beginning of the appeal proceedings and to which no further recourse was had during the rest of the proceedings, that claim shall not be admissible.