Thursday, 24 September 2009

T 223/07 - How LSD Can Boost Inventiveness

[…] The evaluation of the softening performance in the presence and absence of anionic carry over has been tested in the patent in suit by an expert panel of 4 people which followed a specific test protocol. Softness was assessed on an 8-point scale, the lowest numbers indicating better softening results, the softening scores having been calculated using an “Analysis of Variance” technique. The numerical differences between the softness scores of compositions according to claim 1 and the comparisons amount to at most 1.5 in table 2 and are less than 1 in tables 6 and 7.

Moreover, the Board remarks that the specific technique of analysis used has not been described in detail in the patent in suit and the softness scores reported in the tables do not contain an indication of the least significant difference (LSD) for each reported value. Even though the indication of the LSD is certainly not required by the EPC and such an indication would be indeed superfluous under certain circumstances, for example in the case of a large numerical difference between two scores, the Board finds that in the case of comparative tests reporting technical values which are calculated by means of an analysis of variance, the indication of the LSD for each reported value is essential for the evaluation of the reported values in a case, like the present one, wherein the numerical differences between the values to be compared cannot be considered to be large. The Board remarks, in fact, that the experimental report submitted with the statement of the grounds of appeal, wherein the softness scores had been calculated also by an analysis of variance as in the patent in suit, reports LSD values varying considerably from 1.18 to 1.46. […]

Therefore, in the Board’s judgement, in the absence of the indication of the LSD for each reported value it is not possible to draw from the tests reported in tables 2, 6 and 7 any reasonable conclusion as to the superiority or not of any tested composition. […]

The alleged technical effect has to be disregarded in the evaluation of inventive step. [3.3] 

Unsurprisingly, the Board then formulates a less ambitious problem (here, the provision of an alternative softening composition) and concludes on lack of inventive step.

To read the whole decision, click here.