Wednesday, 26 May 2010

T 3/07 – Sufficiency Despite Obvious Errors

[7.4.1] Dependent claim 5 refers to the presence of a lotion further comprising an antiviral composition whereby the antiviral composition comprises from about 0.05% to 80% by weight of said lotion and wherein the antiviral composition is a water soluble metal ion.

The [opponent] argued that it is impossible to produce a lotion composition comprising 80% metal ions, which is the antiviral compound, from the metal salts listed in the patent in suit. For example in a salt like copper sulfate only 40% of the weight can be attributed to the copper ion. A composition of 80% by weight of copper ions can therefore not be produced as the composition would have to comprise more than 100% by weight of the sulfate anion. In other words, even if the “lotion” would consist of 100% antiviral composition and the antiviral composition of a 100% of copper sulfate, the amount of copper ions would not exceed 40%. According to the [opponent] the same applies to all the salts mentioned in the patent in suit where the metal ion generally accounts for less than half of the weight of the metal salts, including the presently claimed aluminium salts.

[7.4.2] The Board does not dispute the [opponent’s] calculation. An upper limit of 80% by weight of the metal ion is obviously incorrect when using the claimed aluminium salts. The Board is, however, of the opinion that the person skilled in the art when trying to put the embodiment of claim 5 into practice would readily identify this obvious mistake and know how to correct it. The Board has not doubts that the skilled person is in a position to calculate for a given aluminium salt the maximum amount of aluminium ion, which can be attributed to that particular salt, in the same way as the [opponent] did for the copper sulfate. It would also be immediately obvious to him that this value represents the theoretical upper limit, which cannot be surpassed when formulating a lotion. The obvious error in claim 5 is therefore not considered detrimental to the sufficiency of disclosure.

To read the whole decision, click here.