1.5.2 Forming a range with isolated value taken from example
The board in T 876/06 applied the principle established in T 201/83 and came to the conclusion that the skilled person could have recognised in the application as originally filed that the weight ratio of liquid rubber to solid rubber was not so closely associated with the other features of the examples as to determine the effect of the invention as a whole in a unique manner and to a significant degree. Thus, it was permissible to use the particular value used in several examples to limit the range of the weight ratio of liquid rubber to solid rubber. The limitation of the claim represented merely a quantitative reduction of a range to a value already envisaged within the document and not an arbitrary restriction providing a technical contribution to the subject-matter of the claimed invention.
In T 1188/10 the new range of 0,006% to 0,015% was formed by taking, as end points, single values from examples 2 and 4 relating to the use of LAE as preservative in two different specific food products at different growth temperatures. In order to assess whether this new range complied with Art. 123(2) EPC it had to be considered whether a skilled person, in analogy to T 201/83, would generalise these values in the sense that he would recognise them as not only associated with the specific food products and temperatures used in the examples. In the case at issue, this was the case so that the range claimed complied with Art. 123(2) EPC.
For a further decision, where the board considered that the values taken from the examples and used as the end points of the claimed range could not be seen only in the context of all the other parameters given there, see T 343/90, in which the relevant amendment complied with Art. 123(2) EPC.