1.5.1 Forming a range by combination of end points of disclosed ranges

In T 2029/23 the patent concerned a method for preparing gelatin-based candy that did not require a drying step or the use of a single-use starch mould to extract moisture from the liquid composition.

The board decided to set aside the decision under appeal, in which the opposition division had concluded that claim 1 of the main request did not meet the requirements of Art. 123(2) EPC.

Claim 1 of the main request differed from claim 1 of the application as filed in that claim 1 of the main request specified that (1) the gelatin had a bloom value of 200 to 300 and (2) the liquid candy composition was allowed to set at a temperature below 10°C for 10 to 30 minutes.

Regarding the bloom value of the gelatin, the board explained that the widest range for a bloom value disclosed in the claims of the application as filed was 200 to 300 (claim 8). Adding this feature to claim 1 of the main request merely specified the gelatin to be used in the invention. Hence, this amendment was directly and unambiguously derivable from the application as filed. This was also the case for the setting temperature, for which the board found that a setting temperature below 10°C was directly and unambiguously derivable from claim 3 of the application as filed.

As regards the range of 10 to 30 minutes for the setting time, the board distinguished the case in hand from the case underlying T 1919/11, in which the competent board had decided that the amendment combining a lower limit and an upper limit from two separate sentences (or "lists") of upper and lower limits was not allowable because the disclosure in the parent application as filed did not represent a range and such a combination was arbitrary. Instead, in the case in hand, there was a single sentence, namely claim 4 of the application as filed, that contained a general range (1 hour or less) and only two preferred narrower ranges (30 minutes or less and 10 minutes or less). The lower two values of this range were used to draw up the range in claim 1 of the main request. This amendment in itself did not produce added subject-matter.

Furthermore, the board observed that the application as filed explicitly stated that for a relatively fast setting time, the temperature during setting was to be kept low. The skilled person would have readily understood that there was a correlation between the setting temperature and the setting time.

Therefore, the board established that claim 1 of the main request met the requirements of Art. 123(2) EPC.