6.2.3 Novelty of enantiomers

According to decision T 296/87 (OJ 1990, 195), the description of racemates did not anticipate the novelty of the spatial configurations contained in them; racemates were described in the state of the art by means of expert interpretation of the structural formulae and scientific terms; as a result of the asymmetric carbon atom contained in the formula the substances concerned might occur in a plurality of conceivable spatial configurations (D and L enantiomers), but the latter were not by themselves revealed thereby in an individualised form. That methods exist to separate the racemate into enantiomers was something that should only be considered with respect to inventive step.

In T 1048/92 the board observed that the fact that the disclosure of the prior document did not embrace more than two possible steric configurations did not take away the novelty of the specific one which was claimed in the application, because there was no unambiguous technical teaching directed to that configuration. The novelty of such an individual chemical configuration could only be denied if there was an unambiguous disclosure of this very configuration in the form of a technical teaching. It was thus not sufficient that the configuration in question belonged conceptually to a disclosed class of possible configurations without any pointer to the individual member.

In T 1046/97 it was decided that the term "optically-active forms" could not be equated to an individualised disclosure of a specific enantiomer (see also T 833/11).

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