9.9.6 Synergistic effects

The concept of synergism is normally used to indicate an interaction of two or more technical measures that produces an effect which is greater than the sum of the separate effects provided by each of these measures (T 2773/17; see also e.g. T 141/87, T 650/10, T 601/22). It is not enough that the features solve the same technical problem or that their effects are of the same kind and add up to an increased but otherwise unchanged effect (T 1054/05).

In T 1814/11 the problem to be solved was to provide an alternative synergistically active fungicidal composition based on prothioconazole. The board concluded that synergistic effects were not foreseeable, i.e. even if a combination of two specific compositions had a synergistic effect as in document 1, such synergy could not necessarily be expected if the structure of one of the two compositions were modified. Synergy was not in principle foreseeable and therefore could not be attributed to a specific mechanism of action and/or structure. The board dismissed the respondent's suggestion of trial-and-error experimentation as inappropriate in this case.

The board in T 116/18 of 28 July 2023 date: 2023-07-28 noted that an inventive step was often acknowledged with reference to the common general knowledge that synergism was rare and unpredictable (see also T 1336/19). It explained that a synergistic effect did not deserve a special position compared with other effects on which patent applicants or proprietors regularly relied for inventive step. To successfully question whether a patent applicant or proprietor could rely on a specific purported technical effect required a legitimate reason to doubt said effect, and that must be more than the mere argument that the effect is surprising. The board in T 1639/21 agreed, stating further that as for any other effect, it had to be established whether, having regard to the state of the art, obtaining a synergistic effect was obvious. The answer depended on the details of the case and the state of the art.

In T 696/19 the board held that for a synergistic effect to be present, it was necessary to show that the sum of the separate effects was inferior to the effect of the two measures combined. This was not proven in the case in hand.

T 1639/21, the board held that in the case in hand the finding that the synergistic effect could be reasonably expected to occur depended on the skilled person's fundamental understanding of the mechanistic relationship between the mRNA vaccine and the antibody targeting an immune checkpoint and not on any structural elements of the compounds under consideration.