5.2.4 Difference in composition

In T 80/96 (OJ 2000, 50) an aqueous solution of the claimed tartrate compound was described in the prior art. The board held that, in the case of an active agent which was known as such to be water-soluble, it was clear to a person skilled in the art that describing and claiming the active agent as a solution did not add to or change the definition of that active agent. Without further specification, the mere characterisation of a solvent or diluent as liquid or solid in a claim did not change the assessment of the novelty of the subject-matter of the claim. Analogously, in a claim directed to a preparation of a known structurally defined active agent with at least one auxiliary substance, in which the feature "with an auxiliary substance or auxiliary substances" meant that something was added to the active agent, the admixture of an unspecified auxiliary substance could not, in view of the unlimited number of substances which might enter into consideration, be deemed a substantive and distinctive addition to the active agent, unless this feature, which was necessary if novelty was to be acknowledged, was specified in such a way that a person skilled in the art could recognise what it was that should be added to the active agent. The claim was therefore not new.

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