Résumé de EPC2000 Art 056 pour la décision T0873/21 du 20.06.2023

In T 873/21 the application related to compound (A) (also referred to as velagliflozin) and compound (B) (also referred to as pergolide) for use in the treatment and/or prevention of Equine Metabolic Syndrome (EMS), Equine Pituitary Pars Intermedia Dysfunction (PPID or equine Cushing's syndrome) and/or laminitis in an equine animal. The appellant argued that the technical effect resulting from the distinguishing feature was an improved insulin sensitivity, in particular a synergistic interaction of compound (A) and compound (B) and that this was demonstrated by the supplemental experimental data in D16. The board found that the therapeutic synergistic effect substantiated in D16 was derivable from the original application, and that the data of D16 only provided a quantification of the obtained improvement in insulin sensitivity described in the original application. Accordingly, the board considered that the synergistic effect relied upon by the appellant was encompassed by the technical teaching of the original application in light of the common general knowledge regarding the therapeutic effects of compound (A) and compound (B) and was embodied by the present combination since it was clearly the preferred combination in the original application. In line with G 2/21, the technical effect demonstrated by the post- published experimental data provided in D16 was thus to be taken into account when assessing the inventiveness of the claimed subject-matter. The board concluded it was credible that the synergistic effect observed in D16, in particular on insuline concentrations would be advantageous in the treatment of EMS, PPID and laminitis in an equine animal. Hence, the objective technical problem underlying the main request resided in the provision of a further combination of active agents containing compound (B) for use in the treatment of EMS, equine PPID and/or laminitis in an equine animal which provides a synergistic effect on insulin resistance. The board found that the skilled person would not have found in the prior art any suggestion towards the present solution to the above defined objective technical problem and that consequently the main request fulfilled the requirements of Art. 56 EPC.