Tuesday, 17 August 2010

T 1252/07 – Closer Than Closest

The Board and the parties agreed that D2 was to be considered as the closest prior art. When assessing the question of whether the objective technical problem was indeed solved, it was questioned whether the comparative trials were relevant, as the comparison was done with prior art different from the examples of D2. Here is what the Board had to say:

[5.4] It is true that none of the documents analysed above specifically deals with an article according to an example of D2. It is, however, considered that the evidence on file represents variants lying closer to the invention than any disclosure of D2, in particular example 3 or 13, so that the advantageous effect attributable to the distinguishing feature(s) of the invention is in fact more clearly demonstrated (T 35/85 [4]; T 197/86 [4, 6.1 and 6.1.2]). Example 13 of D2 for instance differs in two features from the subject matter claimed, namely the class of HALS and the HALS:triazine ratio). The examples of D10, D12, D16, D25, D26, D28 and D29, although they do not illustrate D2, are closer to the claimed subject matter and only differ therefrom in a single feature, namely the HALS:UV absorber ratio. These examples further show that at a given amount of HALS, varying the quantity of UV absorbers within the range claimed leads to a synergy in the UV stabilisation. Finally, the board considers that since the effect has been demonstrated under even more stringent conditions, the same effect is deemed to be also present in comparison to the closest prior art. These facts, thus, support the presence of a technical effect at least over part of the scope of the claims.

If you wish to download the whole decision, you can do so here.