a) Requirements for novelty: narrow, far removed and the "gold standard" 

The principles applied by the boards of appeal on novelty of selection inventions were initially developed in particular in T 198/84 (OJ 1985, 209) and summarised briefly in T 279/89 as three criteria, of which the third one ("requirement (c)") regarding purposive selection has been abandoned in more recent case law. With T 261/15, the criteria according to which a selection of a sub-range of numerical values from a broader range is new were set out as:

(a) the selected sub-range should be narrow;

(b) the selected sub-range should be sufficiently far removed from the known range illustrated by means of examples.

Since 2019, the Guidelines too reflect this (G‑VI, 8 (ii) – November 2019 version; with reference to T 261/15).

In T 1688/20, the board also explained that in cases where under application of the "gold standard" it could be established whether the skilled person, using common general knowledge, directly and unambiguously derived a claimed sub-range from a particular disclosed range of the prior art, no supporting test or criteria was necessary to reach a conclusion. Thus, in that particular instance, none of the three criteria initially developed in T 198/84 needed to be applied (see also T 337/22).

The postulates for the novelty of a selected sub-range are based on the premise that novelty is an absolute concept. It is therefore not sufficient merely for the wording of the definition of an invention to be different. What has to be established in the examination as to novelty is whether the state of the art is such as to make the subject-matter of the invention available to the skilled person in a technical teaching (see the earlier case law reported below: T 12/81, OJ 1982, 296; T 181/82, OJ 1984, 401; T 198/84, OJ 1985, 209; T 17/85, OJ 1986, 406).